                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-8-2005

Blakeney v. Dauphin Cty Prison
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1980




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DPS-25                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 05-1980
                                  ________________

                              HERBERT J. BLAKENEY,
                                                 Appellant
                                          v.

    DAUPHIN COUNTY PRISON; DOMINICK L. DEROSE; DEPUTY WARDEN
     ELIZABETH NICHOLS; LENNY CARROLL; CO EYONE; CO JAMES W.
  HECKARD, JR.; CO LEFFLER; CO SINGULTON; ANGELA L. SWONSON; CO
JOHN DOE 1; CO JOHN DOE 2; CO JOHN DOE 3; CO JOHN DOE 4; CO JOHN DOE
 5; CO JOHN DOE 6; CO JOHN DOE 7, Each of Them in His or Her Official Capacity
                     and Individually; SCOTT K. LEWIS
                 _____________________________________

                   On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                             (D.C. Civ. No. 01-cv-02423)
                     District Judge: Honorable John E. Jones, III
                   _______________________________________

                   Submitted Under 28 U.S.C. § 1915(e)(2)(B)
                               October 20, 2005
          ROTH, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES

                              (Filed December 8, 2005)
                             _______________________

                                    OPINION
                             _______________________

PER CURIAM

      Appellant Herbert J. Blakeney appeals from a District Court order granting in part

the Defendants’ motion for summary judgment and dismissing the remaining claims as
frivolous. The appeal is frivolous, and we will dismiss pursuant to 28 U.S.C. §

1915(e)(2)(B)(i).

       The parties are familiar with the facts, thus we only briefly recite them here. On

February 2, 2000, Blakeney was arrested and charged with the murder of his fourteen-

month-old baby. During the arrest, he was involved in a shoot-out with police and

sustained multiple gunshot wounds. He was taken to a hospital where he stayed until

February 6, when he was transferred to Dauphin County Prison to await trial. Prison

medical staff soon diagnosed Blakeney with serious psychological problems including

hallucinations, suicidal thoughts, anger, and dementia. He also refused to accept medical

treatment, prompting medical personnel to obtain an emergency treatment order.

       On February 10, Blakeney’s aberrant behavior worsened. During an outburst,

Blakeney attempted to assault an attending psychiatrist, then exposed himself and tried to

stab himself with a pencil. He was placed in a restraint chair, a device used by the prison

to briefly subdue unruly or aggressive inmates. Over the course of the next four days,

Blakeney was periodically placed in the restraint chair because of his assaultive and

disobedient conduct. He was uncooperative, physically aggressive, and a risk to his own

recovery. By February 14, 2000, Blakeney’s aggressive episodes ceased and he was soon

transferred to a State forensic hospital for a competency evaluation. The hospital staff

performed a routine physical and reported no injuries other than those suffered during the

initial confrontation with the police.



                                             2
       After exhausting his state remedies, Blakeney filed suit under 42 U.S.C. § 1983

alleging a myriad of unconnected First and Fourteenth Amendment violations. Despite

numerous errors in the complaint, the District Court allowed Blakeney to proceed with

the excessive force claim. Specifically, Blakeney alleged that between February 10-14, a

number of correctional staff and medical personal physically and verbally assaulted him

by hitting and macing him, placing his hands in urine, improperly using the restraint chair,

subjecting him to excessive and improper medication, and conducting a mock trial, in

which the guards threatened to kill him.

       After nearly three years of discovery, numerous pleadings, and several

interlocutory appeals, the District Court granted in part the Defendants’ motion for

summary judgment and dismissed the remaining claims as frivolous under §

1915(e)(2)(B), concluding that the correction officers used only the force necessary “to

subdue [Blakeney] and maintain security and order in pursuit of a valid prison goal . . . .”

Blakeney v. Dauphin County Prison, No. 01-cv-02423, slip op. at 25 (M.D. Pa. Mar. 22,

2005). Blakeney appealed and moved for the appointment of counsel.1

       An appeal is frivolous if it lacks an arguable basis in fact or law. See Neitzke v.

Williams, 490 U.S. 319, 325 (1989). “When excessive force is alleged in the context of a

of a prison disturbance, the . . . inquiry is ‘whether force was applied in a good-faith



   1
     We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the grant of a motion for summary judgment and apply the same test as the District
Court. See Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 285 (3d Cir. 2003).

                                              3
effort to maintain or restore discipline, or maliciously and sadistically to cause harm,’”

and whether the injury is more than de minimus. See Fuentes v. Wagner, 206 F.3d 335,

345 (3d Cir. 2000) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992).

       Blakeney’s claims fall into two categories, disputed and undisputed claims. The

disputed claims include allegations of unjustified physical attacks, the placing of

Blakeney’s hands in urine, and verbal abuse. The undisputed claims include the use of

mace, the restraint chair, and heavy doses of medication. After carefully reviewing the

record, we agree with the District Court that both categories of Blakeney’s claims are

completely lacking in merit.

       With respect to the disputed claims, none are supported by the record. There is no

evidence that Blakeney sustained any new injuries as the result of an alleged beating, and

although the record shows that Blakeney urinated on himself while in the restraint chair,

his hands or bandages were never reportedly covered in urine. Blakeney’s allegations are

further undercut by his admission that because he was heavily medicated, he remembers

very little from the period, including who allegedly assaulted him or when it occurred.

Thus, the District Court correctly concluded that no genuine issue of material fact exists.

       His remaining claims lack any basis in law. The evidence overwhelmingly shows

that Blakeney was aggressive, partly delusional, and a danger to himself and others. The

prison staff’s use of mace, intensive medication, and the restraint chair, were all

reasonable methods under the circumstances for controlling an otherwise out of control



                                              4
inmate. We see no evidence that the Defendants’ actions were malicious or sadistic.

        Blakeney fails to present a dispute over a genuine issue of material fact. The

appeal is patently frivolous. Accordingly, we will dismiss the appeal under §

1915(e)(2)(B)(i). Appellant’s motion for appointment of counsel on appeal is denied as

moot.




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