                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-11-2002

Smith v. Mensinger
Precedential or Non-Precedential: Precedential

Docket No. 99-1382




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PRECEDENTIAL

       Filed June 11, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1382

CARL M. SMITH,

Appellant

v.

ROBIN MENSINGER; DAVID NOVITSKY; JEROME
PAULUKONIS; MARY CANINO; PAUL BURGARD; MARTIN
DRAGOVICH, JEFFREY YURKIEWICZ, PAUL
ANDROSHICK, BERNARD MCCOLE, JAMES ZUBRIS, and
RAYMOND JONES

Appeal from the United States District Court
for the Eastern District of Pennsylvania
Civil No. 97-CV-03613
District Judge: Hon. Eduardo C. Robreno

Argued: July 31, 2001

Before: BECKER, Chief Judge, and McKEE and
WEIS, Circuit Judges.

(Opinion filed: June 11, 2002)

       DEENA J. SCHNEIDER, ESQ. (Argued)
       MATTHEW B. HOLMWOOD, ESQ.
       Schnader Harrison Segal &
        Lewis LLP
       1600 Market Street, Suite 3600
       Philadelphia, PA 19103-7286
       Attorneys for Appellant




       CALVIN R. KOONS, ESQ. (Argued)
       JOHN G. KNORR, III, ESQ.
       Office of Attorney General
       Appellate Litigation Section
       15th Floor, Strawberry Square
       Harrisburg, PA 17120
       Attorneys for Appellees

OPINION OF THE COURT

McKEE, Circuit Judge.

Carl M. Smith, an inmate at the Pennsylvania State
Correctional Facility at Frackville ("SCI-Frackville") filed this
civil rights action under 42 U.S.C. S 1983 alleging that
certain corrections officers and prison employees denied
him due process of law and/or violated his Eighth
Amendment right to be free from cruel and unusual
punishment. The district court dismissed Smith’s due
process claims against some of the defendants under FED.
R. CIV. P. 12(b)(6), but Smith was allowed to proceed on his
Eighth Amendment claims. The court subsequently granted
summary judgment against Smith and in favor of the
defendants on all of Smith’s claims. For the reasons that
follow, we will reverse in part and affirm in part, and
remand for further proceedings consistent with this
opinion.

I. Background

A. The Misconduct Reports

Sometime during the morning of June 3, 1995,
Corrections Officer Robin Mensinger issued a misconduct
report citing Smith with refusing to obey an order to return
to his cell after cell cleanup, and for using foul language
towards a corrections officer. Later that afternoon,
Mensinger cited Smith in a second misconduct report for
allegedly punching her in the eye. That evening, Sergeant
Paulukonis issued a third misconduct report against Smith.
That report cited Smith for assaulting corrections officers

                                2


as they were escorting him to the Restricted Housing Unit
("RHU").

Smith denies that he assaulted Mensinger or struggled
with other corrections officers later that evening. He admits
that he did not return to his cell when Mensinger requested
him to, but claims that he only refused because his cell
was still wet. According to Smith, Mensinger was drunk
and out of control when she issued the first misconduct
report. He claims that as he was leaving his cell during an
organized prisoner movement later that day, he heard a
whistle blow and looked up to see Mensinger pointing at
him. A few seconds later, Corrections Officers Jones and
Yoder purportedly arrived on the cell block. Smith claims
that Mensinger told the corrections officers that Smith had
punched her in the eye. Smith maintains that Yoder then
handcuffed him behind his back, and walked him to a
bench where Smith was ordered to sit down. According to
Smith, other corrections officers (including Androshick,
Zubris and McCole) entered the area a few minutes later.
The officers then purportedly grabbed Smith by both arms
and followed Corrections Officer Novitsky to the Unit
Manager’s Office. There, Smith claims that Yurkiewicz and
Jones joined the group and Yoder left.

Once inside the Unit Manager’s Office, the officers
allegedly rammed Smith’s head into walls and cabinets and
knocked him to the floor. He claims that while he was on
the floor, Yurkiewicz kicked and punched him, and
Novitsky "pulled him to his feet, pushed him against the
wall, punched him in the stomach, and choked him with
both hands. . . ." Brief for Appellant at 15. Smith alleges
that Paulukonis saw the beating, but did nothing to
intervene or restore order.

Smith further alleges that after the beating in the Unit
Manager’s office, two or three guards took him to the RHU
where Yurkiewicz placed him face-down on a bench,
tightened the handcuffs as much as possible, and hit him
on the back of the head while verbally threatening him and
showering him with racial epithets.

B. Smith’s Injuries

Smith alleges that his head was bleeding and the beating
also resulted in pain in his ribs, ears, and right eye. His

                                3


ribs were purportedly red and bruised and remained sore
for a couple of weeks after the beating. Smith was seen by
the medical staff each of the following two days, but
according to the medical records, he was treated only for
chronic asthma. In his deposition, Smith stated that a
doctor gave him ice for his ribs and told him to keep a wet
towel against them the day after the incident. However, a
report prepared by the defendants’ medical expert states
that an examination of Smith soon after the incident failed
to disclose any wounds, marks, or bruises near his rib cage
or anywhere else.

C. The Aftermath of the June 3, 1995 Incident

On June 4, 1995, Pennsylvania State Trooper Leo Luciani
interviewed Smith regarding Smith’s alleged attack of
Mensinger. During that interview Luciani purportedly
showed Smith a photograph of Mensinger that Smith
claims supports his claim that he never hit her in the face.
Nevertheless, the Commonwealth filed a criminal complaint
against Smith based upon Mensinger’s allegation, and
Luciani testified for the prosecution at the preliminary
hearing on those charges. The charges included assault,
assault by a prisoner, and retaliation for past official action.
The Commonwealth subsequently added the charge of
disorderly conduct, and Smith eventually pled nolo
contendere to that charge. The trial court then granted the
Commonwealth’s request to nol pros the remaining charges.

Meanwhile, a hearing on the three misconduct reports
was scheduled at SCI-Frackville, and Smith completed a
"Request for Representation" form listing two inmates he
wanted to call as witnesses at that hearing. He claims that
those two inmates would have testified that he did not
strike Mensinger as she had charged. When Smith arrived
at the hearing, Hearing Officer Mary Canino informed him
that his witnesses were not available and that the hearing
would be delayed until that afternoon.1 However, the
_________________________________________________________________

1. Smith contends that his witnesses were not available because they
were waiting for their own hearings on misconduct notices which "the
drunk and outer [sic] control" Mensinger had also issued to them on
June 3, 1995. App. at 61.

                                4


hearing did not proceed that afternoon, and Smith was
transferred to the State Correctional Institution at Mahoney
("SCI-Mahoney") the next day.

Smith’s misconduct hearing reconvened at SCI-Mahoney
a few days later. However, since Smith’s witnesses
remained at SCI-Frackville, Canino offered to continue the
hearing to afford Smith an opportunity to submit written
statements from his witnesses. Smith refused the offer
because he did not trust that prison officials would obtain
accurate statements. Rather than submit those statements,
Smith sought a continuance in order to attempt to recover
the allegedly exculpatory photograph that Trooper Luciani
had shown him. Canino denied Smith’s request for a
continuance, and Smith’s hearing on the misconduct
reports proceeded without his witnesses.

Canino credited the testimony against Smith, and found
Smith guilty of the conduct charged in all three misconduct
reports. He received seven months disciplinary confinement
for assaulting Mensinger and for resisting the officers who
were escorting him to the RHU. Canino also ordered that
Smith’s prison account be assessed for "medical and other
expenses" to pay for contact lenses for Officer Mensinger
even though no evidence of any such expenses had been
produced at the hearing. App. at 63. Accordingly, $165.00
was deducted from Smith’s inmate account. Smith
challenged that action by filing a grievance in which he
complained that there was insufficient evidence to debit his
account to buy Mensinger lenses. He also unsuccessfully
appealed to the Program Review Committee, and to
Superintendent Dragovich.

II. Procedural History

On May 23, 1997, Smith filed the instant pro se civil
rights action under 42 U.S.C. S 1983 against Corrections
Officers Mensinger, Novitsky, and Paulukonis; as well as
Hearing Officer Canino, and Business Manager Burgard.
The defendants were each sued individually and in their
official capacity. Smith later joined Corrections Officers
Yurkiewicz, Androshick, McCole, Zubris, and Jones as well
as Superintendent Dragovich.

                                5


Smith claimed that several corrections officers used
excessive force during the June 3 incident, and that they
thereafter falsified reports regarding that incident in order
to cover up their use of excessive force. Smith also claimed
that Canino violated his due process rights by improperly
assessing his inmate account, and that Burgard and
Dragovich did not adequately investigate his grievance on
appeal.

Although the district court granted Smith’s request to
amend his Complaint to join Dragovich as a defendant, the
court later dismissed the claim against Dragovich as well as
Smith’s claim against unknown defendant, "John Doe."
Mensinger, Paulukonis, Canino, and Burgard thereafter
moved to dismiss Smith’s claims against them pursuant to
FED. R. CIV. P. 12(b)(6). The district court granted that
motion. In an unreported opinion, Smith v. Luciani, Nos.
CIV.A. 97-3037, CIV.A. 97-3613, 1998 WL 151803 (E.D. Pa.
March 31, 1998) (hereinafter "Smith I"), the district court
explained that since Smith did not have a liberty interest in
remaining in the general prison population, he could not
establish a due process claim based upon being placed in
disciplinary custody. The court also dismissed Smith’s
claim against Mensinger based in part upon its belief that
the claim constituted an improper collateral attack on
Smith’s disorderly conduct conviction.

The district court allowed Smith to proceed against the
remaining corrections officers on his Eighth Amendment
claim, but later granted defendants’ motion for summary
judgment, dismissing that claim, as well. In a second
unreported opinion, Smith v. Mensinger, No. CIV.A. 97-
3613, 1999 WL 178539 (E.D. Pa. March 31, 1999)
(hereinafter "Smith II"), the court concluded that Smith
could not prevail under the Eighth Amendment because the
minimal nature of his injuries established that any force
that may have been used against him must have been de
minimis and therefore insufficient to constitute an Eighth
Amendment violation. The court also concluded that
whatever force the corrections officers had used was
justified by Smith’s assault of Mensinger, and the fact that
he struggled with the other corrections officers. The court
did note that Smith denied assaulting Mensinger and

                                6


struggling with corrections officers. However, the court
refused to credit that denial because Smith offered nothing
to support it, and the hearing officer had found him guilty
of the charged misconduct. This appeal followed. 2

III. Discussion

Smith argues the district court erred in dismissing both
his due process claim, and his Eighth Amendment claim. In
addressing Smith’s challenge to the dismissal of his Eighth
Amendment claim, we must first decide if he can prevail
despite the de minimis nature of his injuries. If we decide
that he can, we must then decide if a corrections officer
(Paulukonis) can be found liable under the Eighth
Amendment "merely" because he failed to intervene in the
beating allegedly administered by his fellow corrections
officers.3

A. Standard of Review
In reviewing a grant of summary judgment, we must view
the facts in the light most favorable to the non-moving
party. See Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d Cir.
2000). Summary judgment is appropriate only if "there is
no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c).
_________________________________________________________________

2. The parties have since successfully mediated the claims arising from
the debit of Smith’s account. Accordingly, they are not before us.

3. Smith alleges that he was beaten on June 3, 1995, and he filed suit
May 23, 1997. The Prison Litigation Reform Act ("PLRA") became effective
on April 26, 1996, before Smith sued. The PLRA requires that inmates
exhaust claims challenging prison conditions before filing suit under
S 1983. See Ghana v. Holland, 226 F.3d 175, (3d Cir. 2000). Smith’s
Eighth Amendment claim is subject to that requirement. See Booth v.
Churner, 532 U.S. 731, 741 (2001). However, exhaustion is an
affirmative defense which can be waived if not properly preserved by a
defendant. See Ray v. Kertes, 285 F.3d 287 (3d. Cir. 2002). Defendants
here have not raised any issues relating to exhaustion. Accordingly, even
assuming that any such issue exists here, it has clearly been waived and
we therefore need not address whether Smith has properly exhausted
under the PLRA.

                                7


A motion to dismiss under Fed. R. Civ. P. 12(b)(6), on the
other hand, should not be granted unless it appears that
the plaintiff can prove no set of facts that would entitle
him/her to relief. See Conley v. Gibson, 355 U.S. 41, 45-6
(1957). In undertaking that analysis, we must construe
complaints of pro se litigants liberally. See Zilich v. Lucht,
981 F.2d 694, 694 (3d Cir. 1992). The issue of an officer’s
duty to intervene presents a question of law, which we
review de novo. See Holland v. New Jersey Dep’t of
Corrections, 246 F.3d 267, 281 (3d Cir. 2001) (stating that
questions of law are reviewed de novo).

We will first address Smith’s Eighth Amendment claims
and then examine his due process claim.

B. The Eighth Amendment Claim Based Upon
Excessive Force

The district court correctly noted that prison guards who
maliciously and sadistically use force against an inmate
violate "contemporary standards of decency even if the
resulting injuries are not significant." Smith II, 1999 WL
178539, at *3 (internal quotations omitted). However, after
noting that Smith could establish an Eighth Amendment
violation even absent evidence of serious physical injuries,
the district court then focused exclusively on the severity of
Smith’s injuries in denying his claim. The court stated:

       Even assuming that plaintiff could show that
       defendants acted with the requisite state of mind, the
       Court concludes that the alleged wrongdoing by
       defendants was not objectively harmful enough to
       establish a constitutional violation. Initially, the Court
       notes that the injuries suffered by plaintiff were
       relatively minor.

        . . . .

        Additionally, accepting as true plaintiff ’s version of
       the facts, including being handcuffed, punched, kicked,
       and thrown into cabinets and walls, and given the
       slight injuries suffered by plaintiff, the Court finds that
       the incident between plaintiff and defendants involved
       a de minimis use of force that was not repugnant to
       the conscience of mankind.

                                8


Id. at *4. Thus, although the court acknowledged that the
absence of severe injuries did not preclude Smith’s Eighth
Amendment claim as a matter of law, the court concluded
that the evidentiary value of the absence of injuries was too
compelling to ignore. See id. Citing Smith’s alleged attack
on Mensinger, the court also noted that "the record shows
that defendants reasonably perceived plaintiff to be a threat
and the need for application of force was apparent." Id. at
*5.

We begin our analysis of that ruling with the Supreme
Court’s decision in Hudson v. McMillan, 503 U.S. 1 (1992).
There, an inmate sued prison guards under S 1983 alleging
that they had used excessive force in violation of the Eighth
Amendment’s prohibition against cruel and unusual
punishment even though he had not suffered serious
injuries during the alleged assault. The Court therefore had
to decide "whether 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 (emphasis added). The Court
"answer[ed] that question in the affirmative." Id.

We applied the teachings of Hudson in Brooks v. Kyler,
204 F.3d 102 (3d Cir. 2000). There, an inmate sued four
prison guards under S 1983 alleging that they had beaten
him in violation of the Eighth Amendment. Although the
undisputed medical evidence showed that the plaintiff
suffered only a few scratches on his neck and hands, he
testified that he was repeatedly punched in the head,
stomped about the back and neck, slammed into a cell
wall, choked, threatened, and nearly rendered unconscious.
All of this was allegedly done while he was handcuffed. See
Brooks, 204 F.3d at 104. In reviewing the claim, we noted
that it was "apparent that the type of vicious, prolonged
attack alleged by Brooks would have resulted in far greater
injuries than those which he indisputably sustained." Id. at
105. Nonetheless, we reversed the district court’s grant of
summary judgment, stating: "[a]ccepting Brooks’s
allegations as true, as we must, a jury could find that the
defendants acted not merely in good-faith to maintain or
restore discipline, but rather out of malice for the very
purpose of causing harm." Id. at 109.

                                9


The district court dismissed Smith’s claims before we
decided Brooks. Accordingly, the court did not have the
benefit of that analysis when, in denying Smith’s claims
here, it focused almost exclusively on "the lack of a serious
physical injury. . . ." Smith II, 1999 WL 178539, at *4,
quoting Eppers v. Dragovich, No. 95-7673, 1996 WL
420830, at * 4 (E.D. Pa. July 24, 1996). It is now clear that
the district court erred in focusing so narrowly on the
absence of serious injuries in deciding if Smith could
establish a claim based upon excessive force. As we clearly
stated in Brooks, the Eighth Amendment analysis must be
driven by the extent of the force and the circumstances in
which it is applied; not by the resulting injuries.

       Requiring objective or independent proof of minor or
       significant injury, would ignore this teaching and place
       protection from injury, instead of protection from
       wanton force, at the hub of the Eighth Amendment.

Brooks, 204 F.3d at 108, citing Moore v. Holbrook, 2 F.3d
697, 700 (6th Cir. 1993).

Nevertheless, it is true that the Eighth Amendment does
not protect an inmate against an objectively de minimis use
of force. See Hudson, 503 U.S. at 9-10. Rather, as noted
above, the pivotal inquiry in reviewing an inmate’sS 1983
claim for excessive force is "whether force was applied in a
good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm." Brooks, 204
F.3d at 106, citing Hudson, 503 U.S. at 7. However, injuries
are only one of several factors that a court must consider
in answering that question.

       In determining whether a correctional officer has used
       excessive force in violation of the Eighth Amendment,
       courts look to several factors including: (1) the need for
       the application of force; (2) the relationship between
       the need and the amount of force that was used; (3)
       the extent of the injury inflicted; (4) the extent of the
       threat to the safety of staff and inmates, as reasonably
       perceived by responsible officials on the basis of facts
       known to them; and (5) any efforts made to temper the
       severity of the forceful response.

                                10


Brooks, 204 F.3d at 106, citing Hudson , 503 U.S. at 7.
Therefore, de minimis injuries do not necessarily establish
de minimis force.

       If we were to adopt the District Court’s reasoning, a
       prisoner could constitutionally be attacked for the sole
       purpose of causing pain as long as the blows were
       inflicted in a manner that resulted in visible (or
       palpable or diagnosable) injuries that were de minimis.

Brooks, 204 F.3d at 108.

We do not, of course, suggest that a fact finder could not
consider the de minimis nature of injuries along with all of
the other circumstances in concluding that the force that
was employed could not have risen to the level required for
an Eighth Amendment violation. A properly instructed fact
finder could, after considering all of the evidence, conclude
that Smith’s injuries were so minor that the defendants’
account of the incident is more credible than Smith’s,
and/or that the force used was not of constitutional
dimension. That may have been exactly what the district
court did here. However, that is an issue of fact to be
resolved by the fact finder based upon the totality of the
evidence; it is not an issue of law a court can decide.4

Punching and kicking someone who is handcuffed behind
his back and under the control of at least six prison guards
as he is being thrown into cabinets and walls is"repugnant
to the conscience of mankind," absent the extraordinary
circumstances necessary to justify that kind of force.
Hudson, 503 U.S. at 10. Smith alleges he was the victim of
an unprovoked and unjustified beating. The district court
dismissed his Eighth Amendment claims, noting that"the
record shows that defendants reasonably perceived plaintiff
to be a threat and the need for the application of force was
_________________________________________________________________

4. In Brooks, we noted that when courts focus on the extent of the
injury, it is important to recognize that "an inmate who is proceeding pro
se, is in a decidedly difficult position from which to generate ‘record
evidence’ on his behalf . . . [u]nder these circumstances, his affidavits
. . . are about the best that can be expected from him [at summary
judgment phase of] the proceedings." Brooks, 204 F.3d at 108 n.7
(emphasis added), quoting Norman v. Taylor, 25 F.3d 1259, 1265 (4th
Cir. 1994) (Hall, J., dissenting).

                                11


apparent." Smith II, 1999 WL 178539, at *5. The court
reached that conclusion in part because it found that
Smith had created a disturbance by "allegedly punching
C.O. Mensinger twice in the eye," as well as"continually
struggling with the defendants . . . ." Id . (emphasis added).
However, Smith alleges that he was handcuffed behind his
back during the "disturbance," and he maintains he did not
hit Mensinger or struggle with the guards as they punched
and kicked him, and rammed his head into the wall. If we
accept Smith’s version of the facts as true, as we must,
there was simply no justification for the defendants’
conduct, and the district court’s ruling to the contrary can
not stand.5

Defendants argue that we should nevertheless affirm the
grant of summary judgment in favor of Officers Androshick,
McCole, Zubris, and Jones because Smith concedes that he
is not sure that they participated in the beating at all.
However, the fact that Smith has acknowledged that he
could not see those defendants during the beating neither
negates their involvement nor their liability as a matter of
law. Smith testified: "Officer Yurkiewicz, Zubris,
Androshick, McCole, Jones, all of them was in back of me
and they were pushing my head, right, into the cabinets in
the wall, cabinets and walls. And then after that, I was
knocked to the floor." App. at 166 (emphasis added). He
further testified: ". . . the full force of all the guards [was]
_________________________________________________________________

5. The district court was also concerned about the potential for an
escalating confrontation with other inmates because"other prisoners on
the cell block were not locked in their cells and were being let out into
the yard." Smith II, 1999 WL 178539, at *5. However, Smith alleges that
the beating occurred out of sight of the other inmates. Moreover, even if
others could see what was occurring, the reasonableness of the force
used would still be an issue of fact for a jury, not an issue of law for the
court. As we noted in Brooks, "while . . . application of some force may
have been needed" to maintain order, "[the plaintiff] was shackled at the
time [of the beating] so that the extent of his threat to staff would not
have been great." Brooks, 204 F.3d at 106.

Furthermore, even assuming that other inmates could see Smith, it is
difficult to understand how beating a handcuffed inmate in the presence
of other inmates in the manner Smith alleges could reasonably be
calculated to reduce tension and restore order inside a prison.

                                12


behind me, they rammed my head into the cabinet and into
the wall . . . No, I didn’t say he [Yurkiewicz] did. I said all
of them." Id. at 168 (emphasis added). That testimony is
sufficient to create a genuine issue of material fact as to
each of those defendants. See Brooks, 204 F.3d at 109.

Moreover, it is undisputed that all of the named officers
were in the vicinity at some point when Smith alleges he
was beaten. The extent of each officer’s participation is thus
a classic factual dispute to be resolved by the fact finder.
Accordingly, we will vacate the judgment in favor of
defendants Novitsky, Yurkiewicz, Androshick, McCole,
Zubris, and Jones and remand the matter for further
proceedings.

C. Officer Paulukonis’ Duty to Intervene

As noted earlier, Smith does not allege that Paulukonis
took part in the beating. Rather, Smith claims that
Paulukonis can be liable under the Eighth Amendment if he
failed to intervene. We agree. We hold that a corrections
officer’s failure to intervene in a beating can be the basis of
liability for an Eighth Amendment violation underS 1983 if
the corrections officer had a reasonable opportunity to
intervene and simply refused to do so. Furthermore, we
hold that a corrections officer can not escape liability by
relying upon his inferior or non-supervisory rank vis-a-vis
the other officers.
Courts have held that a police officer has a duty to take
reasonable steps to protect a victim from another officer’s
use of excessive force, even if the excessive force is
employed by a superior. "If a police officer, whether
supervisory or not, fails or refuses to intervene when a
constitutional violation such as an unprovoked beating
takes place in his presence, the officer is directly liable
under Section 1983." Byrd v. Clark, 783 F.2d 1002, 1007
(11th Cir. 1986); accord Putman v. Gerloff, 639 F.2d 415,
423 (8th Cir. 1981); Byrd v. Brishke, 466 F.2d 6, 11 (7th
Cir. 1972). However, an officer is only liable if there is a
realistic and reasonable opportunity to intervene. See Clark,
783 F.2d at 1007 (instructing the district court upon
remand to determine whether the officer was in a position

                                13


to intervene); Brishke, 466 F.2d at 11 (liability for failure to
intervene exists only if the beating occurred in the officer’s
presence or was otherwise within his knowledge); Putman,
639 F.2d at 423-24 (liability exists only if the non-
intervening officer saw the beating or had time to reach the
offending officer).

In Baker v. Monroe Township, 50 F.3d 1186 (3d. Cir.
1995), we held that a police officer who was the senior
officer involved in executing a search warrant could be
liable in a suit under S 1983 even though he did not
personally use excessive force, nor direct anyone else to. We
concluded that "there [was] sufficient evidence to permit an
inference that [the officer] knew of and acquiesced in the
treatment the [plaintiffs] were receiving at the hands of the
other officers acting under his supervision." Baker, 50 F.3d
at 1193. The specific circumstances in Baker required us to
determine if the plaintiff had shown that the senior officer
had "actual knowledge and acquiescence." Id. at 1194,
quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988). Although the specific context of our analysis only
involved an officer’s liability for the actions of police officers
under his supervision, we do not interpret Baker as
suggesting that liability for failure to intervene is solely
limited to supervisors or officers who outrank their
offending colleagues.

The duty to uphold the law does not turn upon an
officer’s rank. It is neither affected by, nor proportional to,
a non-intervening officer’s relationship to an offending
colleague. The approving silence emanating from the officer
who stands by and watches as others unleash an
unjustified assault contributes to the actual use of
excessive force, and we cannot ignore the tacit support
such silence lends to those who are actually striking the
blows. Such silence is an endorsement of the constitutional
violation resulting from the illegal use of force. 6 It is
incompatible with the restrictions imposed under the
_________________________________________________________________

6. The message that emanates from such silence was vocalized in
Hudson where the supervisor allegedly stood by and told officers who
were beating an inmate "not to have too much fun." Hudson, 503 U.S.
at 4.

                                14


Eighth Amendment, and is therefore unacceptable. We will
not immunize such conduct by suggesting that an officer
can silently contribute to such a constitutional violation
and escape responsibility for it. The restriction on cruel and
unusual punishment contained in the Eighth Amendment
reaches non-intervention just as readily as it reaches the
more demonstrable brutality of those who unjustifiably and
excessively employ fists, boots or clubs.

Although our case law refers to police officers, not
corrections officers, this does not change our analysis.7
Both are law enforcement officers, both are sworn to uphold
the law, and both are authorized to use force (even deadly
force) toward that end. We are, of course, aware of the
obvious security concerns inside the close confines of a
prison. However, that is simply one factor that must be
considered in determining if a particular application of force
is reasonable. It does not suggest a different Eighth
Amendment inquiry for corrections officers as opposed to
police officers. The law does not allow either to condone or
cover up the use of excessive force. Similarly, neither can
escape liability by turning either a blind eye or deaf ear to
the illegal conduct of their colleagues.

Therefore, "if [Smith] can show at trial that an officer
attacked him while [Paulukonis] ignored a realistic
opportunity to intervene, he can recover." Miller v. Smith,
220 F.3d 491, 495 (7th Cir. 2000). Moreover, neither rank
nor supervisory status is a factor in assessing whether
Paulukonis had "a realistic opportunity to intervene." Id.8
_________________________________________________________________

7. We have, however, held that a corrections officer’s acquiescence can
result in liability under S 1983 in a very different context than we are
confronted with here. See Curtis v. Everette, 489 F.2d 516 (3rd Cir.
1973).

8. Although it is clear that Paulokonis’ junior rank and lack of
supervisory status does not immunize him from liability for failing to
intervene, we do not suggest that a fact finder could not conclude that
the conduct of a supervisor who fails to intervene is even more
reprehensible and blameworthy than that of a more junior officer. The
fact that rank does not shield one from liability does not mean that a
fact finder must ignore the even greater dereliction of duty that occurs
when a supervisor tolerates the kind of misconduct that is alleged here.

                                15


There is some evidence that Paulukonis witnessed the
beating that his fellow officers allegedly administered to
Smith. Smith alleges that Paulukonis stated in his
misconduct report that "[t]he minimum amount of force
was used to place inmate Smith onto the floor." App. at
329. This appears to be based upon first-hand observations
Paulukonis made while standing at the door of the Unit
Manager’s office during the incident. Smith further testified
that the door of the office remained open throughout the
incident and that Paulukonis saw the beating. A fact finder
could conclude that Paulukonis knew that his fellow
officers were using excessive force against Smith, had an
opportunity to intervene, but refused to do so. Accordingly,
the district court erred in dismissing Smith’s Eighth
Amendment claim against Paulukonis.

D. Smith’s Due Process Claim

In a separate opinion, the district court also held that
Smith could not establish a due process claim under Griffin
v. Vaughn, 112 F.3d 703 (3d Cir. 1997). See Smith I, 1998
WL 151803, at *5. The district court reasoned that Smith
"was subjected to seven months disciplinary time, a period
of time half of that implicated in Griffin." Id. The court
reasoned that, even assuming that the misconduct reports
were issued to cover up the use of excessive force, the
disciplinary sanction still did not constitute a due process
violation as it did not rise to the level of an"atypical and
significant hardship in relation to the ordinary incidents of
prison life." Id., quoting Griffin , 112 F.3d at 706.

Smith argues that the district court misinterpreted the
basis of his due process claim. Smith does not claim that
the seven months disciplinary sanction was a violation of a
liberty interest and therefore a denial of due process.
Rather, Smith claims that Mensinger issued a misconduct
report to retaliate against Smith for his conduct toward
Mensinger and to cover up a beating. Thus, Smith claims
that the misconduct report was not intended to enforce
prison regulations at all, and it was therefore improper to
impose a disciplinary sanction.9 However, even assuming
_________________________________________________________________

9. As noted earlier, we will interpret Smith’s pro se complaint liberally.
See Zilich, 981 F.2d at 694.

                                16


that the district court did misconstrue the crux of Smith’s
due process claim, it is nevertheless evident that the court’s
rejection of that claim was correct.

In Sandin v. Conner, 515 U.S. 472 (1995), an inmate had
been charged with multiple disciplinary infractions, but the
inmate’s request to produce certain witnesses at his
hearing was refused by the hearing committee because the
witnesses were unavailable. The committee found the
inmate guilty of the charged misconduct and sentenced him
to 30 days in segregated confinement. Thereafter, he
brought a S 1983 suit claiming that the hearing did not
satisfy the requirements of due process. See Sandin, 515
U.S. at 475-76. The Court disagreed. The Court held that
confinement in administrative or punitive segregation will
rarely be sufficient, without more, to establish the kind of
"atypical" deprivation of prison life necessary to implicate a
liberty interest. Therefore, the Court found that the
inmate’s segregated confinement was not a denial of due
process. See id. at 486.

Prison disciplinary proceedings may, however, constitute
a denial of due process in the context of a civil rights action
under S 1983 when they are instituted for the sole purpose
of retaliating against an inmate for his/her exercise of a
constitutional right. In Allah v. Seiverling, 229 F.3d 220 (3d
Cir. 2000), we stated:

       Sandin instructs that placement in administrative
       confinement will generally not create a liberty interest.
       Retaliation may be actionable, however, even when the
       retaliatory action does not involve a liberty interest.
       [G]overnment actions, which standing alone do not
       violate the Constitution, may nonetheless be
       constitutional torts if motivated in substantial part by
       a desire to punish an individual for exercise of a
       constitutional right.

Seiverling, 229 F.3d at 224 (internal citations and quotation
marks omitted).

We have previously held that falsifying misconduct
reports in retaliation for an inmate’s resort to legal process
is a violation of the First Amendment guarantee of access to
the courts. See Millhouse v. Carlson, 652 F.2d 371, 374 (3d

                                17


Cir. 1981). In Millhouse, the inmate alleged that prison
officials retaliated against him by fabricating misconduct
charges in response to his civil rights suit against the
prison officials. We concluded that "[s]uch allegations, if
proven at trial, would establish an infringement of
Millhouse’s first amendment right of access to the courts."
Millhouse, 652 F.2d at 374.

Although Millhouse also involved an allegation that prison
officials fabricated misconduct charges, that case is
distinguishable from Smith’s because the conduct in
Millhouse implicated a constitutional right--the First
Amendment right to access to the courts. Smith’s purported
liberty deprivation, on the other hand, implicates no
constitutional right and therefore can not overcome the
hurdle erected by the holding in Sandin. See Sandin, 515
U.S. at 486. Under Sandin, an administrative sentence of
disciplinary confinement, by itself, is not sufficient to create
a liberty interest, and Smith does not claim that another
constitutional right (such as access to the courts) was
violated. Accordingly, we hold that the district court
correctly dismissed Smith’s due process claim.

In dismissing the claims, the district court correctly
relied upon the analysis of the Court of Appeals for the
Second Circuit in Freeman v. Rideout, 808 F. 2d 949 (2d
Cir. 1986). In Freeman, an inmate brought a due process
claim against prison authorities under S 1983 alleging that
the prison officials’ use of falsified evidence and bogus
misconduct reports resulted in his being unconstitutionally
confined in punitive segregation for 30 days. See Freeman,
808 F.2d at 951. The plaintiff was awarded damages
following a trial, but the award was reversed on appeal. The
court of appeals concluded that, with respect to the
misconduct hearing, due process is satisfied where an
inmate is afforded an opportunity to be heard and to defend
against the allegedly falsified evidence and groundless
misconduct reports. Thus, so long as certain procedural
requirements are satisfied, mere allegations of falsified
evidence or misconduct reports, without more, are not
enough to state a due process claim. See id. at 953.

Smith argues that "there is more" to his claim However,
he must clear two hurdles to overcome the district court’s

                                18


reliance on Freeman. First, it is now clear that the sanction
Smith challenges (seven months disciplinary confinement)
does not, on its own, violate a protected liberty interest as
defined in Sandin. Therefore, he can not establish that the
defendants’ conduct denied him substantive due process by
infringing upon a liberty interest. Second, he was afforded
a hearing and therefore had the opportunity to confront
and challenge the allegedly perjured testimony offered in
support of the misconduct reports. Under Freeman , that is
all he was entitled to.

Smith cites several cases in arguing that the district
court erred in relying upon Freeman. However, the cases he
cites are either distinguishable, or were decided before
Sandin, and are therefore of little precedential value.10 We
_________________________________________________________________

10. The cases Smith cites in support of his argument are distinguishable
in that they allege the deprivation of a constitutional right or liberty
interest apart from, or in conjunction with, the inmate’s segregation from
the greater prison population. See, e.g., Seiverling, 229 F.3d at 225
(administrative segregation in retaliation for filing law suits violated
inmate’s access to the courts); Millhouse, 652 F.2d at 374 (same); Grillo
v. Coughlin, 31 F.3d 53 (2d Cir. 1994) (the hearing itself did not comport
with due process because the fact finder was given falsified documents
that differed from the copies the inmate received); Franco v. Kelly, 854
F.2d 584 (2d Cir. 1988) (inmate alleged that misconduct reports were
fabricated in retaliation for his cooperation with an investigation by the
state’s Inspector General, thus implicating his right to petition the
government for redress of grievances); Cale v. Johnson, 861 F.2d 943
(6th Cir. 1988) (allegations that prison officials fabricated misconduct
charge in retaliation for inmate’s complaint about food was actionable as
a Bivens suit); Sprouse v. Babcock, 870 F.2d 450 (8th Cir. 1989) (false
misconduct charges constituted retaliation for filing lawsuits and
therefore stated a claim under S 1983 because it implicated access to the
courts); Harbury v. Deutch, 233 F.3d 596 (D.C. Cir. 2000) (allegations of
false statements designed to forestall a Bivens action stated a claim for
denial of access to the courts).
Rhodes v. Robinson, 612 F.2d 766 (3d Cir. 1979) and Black v. Lane, 22
F.3d 1395 (7th Cir. 1994) are the only two cases cited by Smith that
appear to support Smith’s claims. However, both Rhodes and Black were
decided before Sandin.

Although Smith alleges that he was cited in the misconduct reports to
cover up the defendants’ own improper conduct, his complaint does not

                                19


suggest a retaliatory motive that would implicate a constitutional right
such as access to the courts. Accordingly, accepting Smith’s allegations
as true, he claims only that defendants’ conduct was improper and in
bad faith, not that it denied him the due process that must form the
basis of his S 1983 claims.

11. In affirming the dismissal of the due process claims we do not
suggest that we agree with the district court’s conclusion that Smith is
improperly attempting to collaterally attack his state court conviction for
disorderly conduct. He pled nolo contendere to that charge, and that plea
does not bar his due process claims here. See Thomas v. Roach, 165
F.3d 137, 144-45 (2d Cir. 1999); see also FED. R. EVID. 410.
therefore find that the district court did not err in
dismissing Smith’s due process claims.

IV. Conclusion

Accordingly, we will affirm the district court’s dismissal of
Smith’s due process claims.11 However, we hold that the
district court erred in dismissing Smith’s claims under the
Eighth Amendment. Consequently, we vacate the entry of
summary judgment in favor of defendants Novitsky,
Yurkiewicz, Androshick, McCole, Zubris, and Jones. We
also hold that corrections officers have a duty to intervene
when other officers use excessive force irrespective of the
rank of the offending officers. Accordingly, we will also
reverse the dismissal of Smith’s Eighth Amendment claim
against Paulukonis.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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