                                                       NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                               No. 13-1864
                               ___________

                            JEVON EVERETT,
                                      Appellant

                                     v.

   CORRECTIONAL OFFICER NORT; CORRECTIONAL OFFICER PINDEL;
     ALLEGHENY COUNTY JAIL; SERGEANT MOORE, Captain, (Staff);
     SERGEANT RUBEL, (Staff); SERGEANT KENGERSKI; SERGEANT
      COULTER; CORRECTIONAL OFFICER CHROINSTER; WARDEN
 RAMON RUSTIN; ALLEGHENY CORRECTIONAL HEALTH SERVICES, INC.

                ____________________________________

               On Appeal from the United States District Court
                  for the Western District of Pennsylvania
                   (D.C. Civil Action No. 2:10-cv-00561)
                District Judge: Honorable Arthur J. Schwab
                ____________________________________

              Submitted Pursuant to Third Circuit LAR 34.1(a)
                            November 1, 2013

             Before: SMITH, GARTH and ROTH, Circuit Judges

                    (Opinion filed: November 21, 2013)
                               ___________

                                OPINION
                               ___________

PER CURIAM
       Pro se Appellant Jevon Everett appeals from an order of the United States District

Court for the Western District of Pennsylvania granting summary judgment in favor of

the Defendants. For the reasons set forth below, we will affirm in part, vacate in part,

and remand for further proceedings.

                                              I.

       Everett filed a complaint pursuant to 42 U.S.C. § 1983 alleging that the

Defendants violated his constitutional rights while he was awaiting trial at the Allegheny

County Jail. On April 13, 2008, jail officials were scanning all detainees’ fingerprints for

biometric access to the commissary. Everett explained that he would not comply because

he did not have commissary privileges and his religion forbids fingerprinting. The

correctional officers instructed him to allow his fingerprints to be scanned or he would be

sent to the Disciplinary Housing Unit (“DHU”) where they would be scanned by force.

Everett again declined and officers relocated him to the DHU the following day.

Brandyn Seabreeze, another inmate who was also asked to submit his fingerprints, heard

a corrections officer tell Everett that they would get his fingerprints “even if we have to

beat the shit out of you.” Thereafter, Seabreeze witnessed officers spraying mace on

Everett and he could hear Everett “pleading with the officers as he was escorted to the

fingerprint unit telling them he didn’t want commissary and his face and eyes were

burning.” Seabreeze attests that he “never saw Mr. Everett make any aggressive moves

or gestures.”


                                              2
       The officers subsequently took Everett and placed him in a restraining chair.

Everett stated in his declaration that he clenched his fists while he was in the restraint

chair after “officer Pindel announced and threatened [him] stating, ‘give me your fucking

fingers, I’ll break every one of them until you give us your fingerprints.’” When Everett

would not release his fingers from a closed fist position, the officers used a taser gun on

him. According to the officers, Everett was stunned once with the taser for a two-second

cycle. According to Everett, he was stunned three times on three different parts of his

body, for five-second cycles, until his fingerprints were scanned.1

       Following the incident, Everett requested medical treatment for his injuries, which

he listed as “migraines, a quivering voice box, chest pains, heart pains, wheezing lungs,

broken fingers, a hole in buttocks, and PTSD.” He received 800 mg of Motrin.

Thereafter, he was placed in the DHU.2 The record evidence shows that Everett declined

medical treatment when it was offered on each of the following three days. Everett filed

a grievance with respect to the incident3 and the use of force incident was reported to

Internal Affairs, which determined that the use of force was justified.


1
  Seabreeze stated that he saw the officers “taze [sic] Mr. Everett repeatedly.”
2
  Everett argues that his due process rights were violated during the disciplinary hearing
because his witnesses were not called. He presented this argument in opposition to
County Defendants’ motion for summary judgment and the District Court did not address
this claim in its opinion. Pursuant to the due process requirements for disciplinary
hearings set forth in Wolff v. McDonnell, 418 U.S. 539 (1974), the prison administration
has the discretion to limit the hearing and the witnesses called to protect institutional
security. Id. at 566-67. There being no evidence in the record to support Everett’s claim,
we also decline to address it.
3
  The disposition of the grievance is not in the record. In their summary judgment
                                               3
       Based on these events, on April 23, 2010, Everett filed a complaint pursuant to 42

U.S.C. § 1983 alleging that the Defendants violated his constitutional rights under the

First, Third, Fourth, Fifth, Sixth, Eighth, Ninth, Thirteenth, and Fourteenth

Amendments.4 Named as defendants were various correctional officers and sergeants of

Allegheny County Jail, as well the jail itself (“County Defendants”). Everett’s complaint

made out two claims: excessive force and failure to provide adequate medical care. On

June 14, 2012, Everett filed an amended complaint wherein he named additional

correctional officers and Allegheny Correctional Health Services, Inc. (“ACHS”).

       Defendants moved for summary judgment, arguing in part that they were entitled

to qualified immunity and that Everett’s claims were barred by the statute of limitations.

The District Court found that the statute of limitations had not yet expired at the time that

the original complaint was filed.5 With respect to the amended complaint, there was no


motion, the County Defendants stated conclusively that Everett failed to exhaust his
administrative remedies as required under the Prison Litigation Reform Act (“PLRA”),
without any evidentiary support. See 42 U.S.C. § 1997e(a). In response, Everett stated
that he never received a response to his grievance. The District Court did not address the
issue in granting summary judgment, other than stating that the grievance process tolled
the statute of limitations. In this regard, we express no opinion on whether Everett
exhausted his administrative remedies. See, e.g., Surles v. Andison, 678 F.3d 452, 457-
58 (6th Cir. 2012) (summary judgment precluded in inmate's § 1983 action for failure to
exhaust administrative remedies where genuine issues of material fact existed as to
whether state inmate exhausted his administrative remedies, and whether prison officials
prevented inmate from filing grievances and exhausting his administrative remedies).
4
  The Defendants argue that the complaint was filed on May 4, 2010, the day it was
received by the Court. However, under the prison mailbox rule, the complaint is
considered to be filed on the date that it was given to prison authorities for mailing.
Houston v. Lack, 487 U.S. 266, 270-71 (1988).
5
  Everett alleged that the acts or omissions underlying his claims took place between
                                               4
indication that ACHS received notice of the lawsuit within 120 days in order for the

allegations to “relate back” to the original complaint per Fed. R. Civ. P. 15(c) The

District Court nevertheless addressed Everett’s claims on the merits and granted

summary judgment in favor of the Defendants on both of Everett’s claims. 6 The District

Court concluded that Everett failed to set forth an Eighth Amendment claim against the

County Defendants, and thus, did not reach the issue of qualified immunity. This appeal

followed.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court’s order granting summary judgment. See Giles v. Kearney, 571

F.3d 318, 322 (3d Cir. 2009). Summary judgment is proper when, viewing the evidence

in the light most favorable to the non-moving party and drawing all inferences in that

party’s favor, there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Id.

                                             III.


April 13 and 29, 2008. The District Court concluded that the statute of limitations was
tolled pending the exhaustion of the prison grievance system and concluded that the
claims in the original complaint were timely.
6
  Everett argues for the first time that the District Court erred in granting summary
judgment prematurely before the completion of discovery. On December 4, 2012, the
District Court denied Everett’s motion to extend time for discovery because the case was
two years old and dispositive motions had been filed. Everett has not identified that any
additional information he seeks would have precluded summary judgment. Accordingly,
the District Court did not abuse its discretion in ruling on defendants’ summary judgment
motions, notwithstanding any outstanding discovery requests. See Dowling v. City of
                                               5
       We first address Everett’s claim of inadequate medical care. We agree with the

District Court that there are no issues of material fact and summary judgment in favor of

ACHS was proper.7 First, Everett has not alleged that ACHS has any policy or practice

that resulted in the deprivation of his civil rights, as required by Monell v. Department of

Social Services, 436 U.S. 658, 690-91 (1978). Thus, ACHS cannot be held liable under §

1983. Moreover, there is no evidence that ACHS was deliberately indifferent to a serious

medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976) “To act with deliberate

indifference to serious medical needs is to recklessly disregard a substantial risk of

serious harm.” Giles, 571 F.3d at 330. “Where a prisoner has received some medical

attention and the dispute is over the adequacy of the treatment, federal courts are

generally reluctant to second guess medical judgments and to constitutionalize claims

which sound in state tort law.” United States ex rel. Walker v. Fayette Cnty., 599 F.2d

573, 575 n.2 (3d Cir. 1979) (quotation marks omitted). Although Everett asserts in a

conclusory manner that he was not provided with medical care, the record evidence

indicates that he was seen the day of the incident and declined medical treatment when it

was offered on each of the following three days. Accordingly, we will affirm the District

Court’s order granting summary judgment in favor of ACHS.

                                             IV.




Philadelphia, 855 F.2d 136, 139-41 (3d Cir. 1988).
7
  Because we affirm the District Court’s decision on the merits, there is no need to
address the statute of limitations issue.
                                            6
       Everett also claims that the prison guards used excessive force in obtaining his

fingerprints. Eighth Amendment cruel and unusual punishment standards apply to a

pretrial detainee’s excessive force claim arising in the context of a prison disturbance.

Fuentes v. Wagner, 206 F.3d 335, 347 (3d Cir. 2000). The applicable test under the

Eighth Amendment is “whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian,

503 U.S. 1, 7 (1992). Relevant factors include: (1) the need for force, (2) the relationship

between the need and the amount of force used, (3) the extent of injury, (4) the extent of

the threat to safety as reasonably perceived by officials, and (5) “‘any efforts made to

temper the severity of a forceful response.’” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir.

2000) (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)).

       The District Court cited a number of cases in support of its conclusion that the

Defendants used the taser in a good-faith effort to maintain discipline. In those cases, the

victims were violent, aggressive, unruly, or presented an immediate risk of danger to

themselves or others, unlike Everett who was restrained at the time and refusing to

unclench his fist for fingerprints while prison officers threatened to break his fingers.

None of the cases cited by the District Court involved a taser victim who was already

restrained. A taser victim’s lack of aggressive or threatening behavior troubled the

Seventh Circuit in Lewis v. Downey, 581 F.3d 467 (7th Cir. 2009). In that case, Lewis

was tased for not rising from his bed when ordered to do so. The Lewis Court vacated

the grant of summary judgment in favor of defendant, concluding that a reasonable jury
                                              7
could find that the officer did not use the taser in good faith and therefore inflicted cruel

and unusual punishment. Id. at 478; see also Hickey v. Reeder, 12 F.3d 754, 758-59 (8th

Cir. 1993) (reversing the District Court’s judgment in favor of defendants on plaintiff’s

Eighth Amendment claim when he alleged that a stun gun was used to force him to sweep

his prison cell). Moreover, contrary to the District Court’s opinion here, the Court in

Lewis held that the use of the taser gun was not de minimis application of force. Lewis,

581 F.3d at 475.

       Everett’s declaration and witness statements reflect that the officers threatened

him and he was restrained at the time the officers used the taser on him, and according to

Everett, they used it three times. There is no evidence that Everett was acting violently at

the time he was in the restraint chair; he simply refused to open his fist. Moreover, while

there is no record evidence detailing that Everett suffered serious injury, “the use of

excessive physical force against a prisoner may constitute cruel and unusual punishment

when the inmate does not suffer serious injury.” Hudson, 503 U.S. at 4. Although the

officers present a different account of the incident and Internal Affairs determined that

the use of force was justified, summary judgment is not appropriate if “‘it appears that the

evidence, viewed in the light most favorable to the plaintiff, will support a reliable

inference of wantonness in the infliction of pain.’” Brooks, 204 F.3d at 106 (quoting

Whitley, 475 U.S. at 322).

       We conclude that there is a genuine issue of material fact as to “whether force was

applied in a good-faith effort to maintain or restore discipline, or maliciously and
                                              8
sadistically to cause harm.” Hudson, 503 U.S. at 7. The evidence relied upon by the

District Court may raise questions about Everett’s version of the events, but “at the

summary judgment stage, a court may not weigh the evidence or make credibility

determinations; these tasks are left to the fact-finder.” Boyle v. Cnty. of Allegheny Pa.,

139 F.3d 386, 393 (3d Cir. 1998). Were the jury to believe Everett’s contentions, it could

adduce that the officers did not use the taser in good faith to maintain or restore discipline

and find in his favor.

       We thus conclude that summary judgment was not warranted on Everett’s

excessive force claim.8

                                             V.

       For the reasons set forth above, we will affirm the District Court’s order granting

summary judgment in favor of ACHS.9 We will vacate the District Court’s order


8
  The County Defendants claim here, as they did below, that they are entitled to qualified
immunity. They assert their position in a footnote, without argument. Because we have
determined that a material fact exists with respect to the County Defendants’ good faith
use of the taser, summary judgment is not appropriate on the basis of qualified immunity.
See Giles, 571 F.3d at 327-28 (where material fact existed as to whether the inmate had
ceased resisting at the point he was kicked, summary judgment was improper on the basis
of qualified immunity).
9
  ACHS filed a motion for leave to file Everett’s medical records under seal. The District
Court granted a similar motion below. We have recognized the important privacy interest
in one’s medical records. Doe v. Delie, 257 F.3d 309, 315 (3d Cir. 2001). The right to
privacy is a consideration in the balancing process that courts conduct in deciding
whether to file a document under seal. Pansy v. Borough of Stroudsburg, 23 F.3d 772,
786-87 (3d Cir. 1994). In light of the District Court’s treatment of the medical records
and because in this instance, the right to privacy outweighs the public’s right of access to
materials filed in litigation, we grant ACHS’ motion for leave to file Everett’s medical
records under seal.
                                               9
granting summary judgment in favor of the County Defendants on Everett’s excessive

force claim and remand for further proceedings.




                                          10
