IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MELVIN LASSITER, PRO SE, :

Plaintiff :

vs. :

 :

TODD BUSKIRK, ET AL., :

Defendants : No. 03-5511

Gene E.K. Pratter, J. Memorandum and Order June 22, 2006

Defendants Todd Buskirk and James Smith move for an entry of summary judgment in

their favor with respect to pro se plaintiff Melvin Lassiter’s claim of a violation of 42 U.S.C. §

1983. For the reasons discussed below, the Defendants’ motion will be granted.

FACTUAL AND PROCEDURAL BACKGROUND

Melvin Lassiter, the pro se plaintiff in this case, was at all relevant times a pretrial

detainee in the Northampton County Prison. The circumstances surrounding this case began on

July 6, 2003 when Mr. Lassiter was charged, by criminal complaint, with attempt to commit

kidnaping, interference with the custody of a child and luring a child into a motor vehicle. 

Defendants’ Exhibit B. On that same day, a warrant to take Mr. Lassiter into custody pending a

hearing on the charges was authorized. Id. On July 7, 2003, Mr. Lassiter was taken to

Northampton County Prison, where a classification specialist at the prison completed an

“Objective Jail Classification Initial Classification Tally Sheet” to determine at what level of

prison security to secure Mr. Lassiter. Defendants’ Ex. C. Primarily because the crimes with

which Mr. Lassiter was charged were considered to be of the “highest severity” and because Mr.

Lassiter had two or more prior felony convictions, the classification specialist recommended that

Case 2:03-cv-05511-GEKP Document 41 Filed 06/22/06 Page 1 of 11
1

 The Court notes that Mr. Lassiter refers to this individual as Andre Ford and, in fact,

“Andre Ford” is listed on the prison administrative records as an alias that Mr. Fordham utilized. 

Defendants’ Ex. E. Because “Fordham” appears to be the appropriate surname, the Court will

refer to this individual as Mr. Fordham.

2

 The category stated on the form was “serious violence threat” and the person

completing the form for Mr. Fordham crossed out the word “serious.”

3

 The status of Mr. Fordham as being either HIV-positive or suffering from AIDS has not

been verified. The Court notes that there is a distinction between the two, but, as discussed in the

Court’s prior memorandum, the distinction is not relevant in this case. April 28, 2005

Memorandum and Order at n.2. For purposes of this motion, the Court will presume that Mr.

Fordham was, at the relevant time, either HIV-positive or suffered from AIDS.

2

Mr. Lassiter be placed at the maximum custody level and housing assessment. Id. 

Later that same month, on July 21, 2003, Andre Fordham1 was arrested and delivered to

Northampton County Prison; he was placed in the same cell with Mr. Lassiter. Defendants’ Ex. C.

Mr. Fordham was charged with crimes classified as “high” severity and had a “high” serious offense

history. Id. at Section II, ¶¶ 1, 2.2 Mr. Fordham had no history of institutional disciplinary actions,

and, although there was a space on the intake forms to denote such issues, no medical problems were

indicated. Id. at Section 2, ¶ 4; Section 3, ¶ B. The specialist conducting Mr. Fordham’s evaluation

did list “violence threat” as a “special management” issue deemed to apply to Mr. Fordham. Id. at

Section III, ¶ B. Unbeknownst to either Mr. Lassiter or either of the Defendants, Mr. Fordham was

allegedly infected with the AIDS virus.3

The circumstances giving rise to the present claim occurred on or about July 29, 2003, when

a “wrestling tussle” occurred between Mr. Lassiter and Mr. Fordham after a disagreement with

respect to some personal belongings. M. Lassiter Dep. at 39:6-9. The altercation began when Mr.

Fordham attempted to punch Mr. Lassiter when Mr. Lassiter attempted to grab a toiletries bag away

from Mr. Fordham. M. Lassiter Dep. at 38:6-16. During the altercation that ensued and while Mr.

Case 2:03-cv-05511-GEKP Document 41 Filed 06/22/06 Page 2 of 11
3

Fordham’s mouth was apparently bleeding, Mr. Fordham bit Mr. Lassiter, allegedly causing Mr.

Lassiter’s hand to bleed from a deep gash. 

Mr. Lassiter filed his initial complaint in this action on October 2, 2003, followed by the

filing of an amended complaint on December 29, 2003, after he was granted leave to file the claim

in forma pauperis. Mr. Lassiter then filed a second amended complaint on July 9, 2004. Mr.

Lassiter originally sued a number of individuals. On April 28, 2005, the claims against all of the

defendants except for those charged against Todd Buskirk and James Smith were dismissed for

failing to state claim upon which relief could be granted. Messrs. Buskirk and Smith answered the

second amended complaint on August 1, 2005. Discovery in the case ensued and has been

completed. Messrs. Buskirk and Smith now move for an entry of summary judgment.

DISCUSSION

A. Standard of Review

Summary judgment is appropriate “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). An issue is “genuine” if the evidence is such that a reasonable jury could return a

verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 91 L. Ed. 2d 202 (1986). A factual dispute is “material” if it might affect the outcome of the

case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing the

district court of the basis for its motion and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.

Case 2:03-cv-05511-GEKP Document 41 Filed 06/22/06 Page 3 of 11
4

 The Court infers the latter argument from Mr. Lassiter’s pro se submission.

4

Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof on a

particular issue at trial, the moving party’s initial burden can be met simply by “pointing out to the

district court that there is an absence of evidence to support the non-moving party’s case.” Id. at 325.

After the moving party has met its initial burden, “the adverse party’s response, by affidavits or as

otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for

trial.” FED.R.CIV.P.56(e). Summary judgment is appropriate if the non-moving party fails to rebut

by making a factual 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.” Celotex, 477 U.S. at 322.

Under Rule 56, the Court must view the evidence presented in the motion in the light most favorable

to the opposing party. Anderson, 477 U.S. at 255.

B. Whether the Defendants Exhibited Deliberate Indifference

In support of their motion, the Defendants argue that summary judgment is appropriate

because there is no evidence on the record from which either Mr. Buskirk or Mr. Smith could be

found liable for the purported injuries suffered by Mr. Lassiter. In response, Mr. Lassiter argues that

the Defendants had knowledge both of Mr. Fordham’s tendency toward violent behavior as well as

his medical condition. Mr. Lassiter specifically argues that the Defendants were aware of Mr.

Fordham’s prior criminal history, which involved charges of aggravated assault, and that the

“medical clearance” required by the prison classification rules would have notified the Defendants

of Mr. Fordham’s status as being infected with HIV. Thus, Mr. Lassiter posits that the Defendants

knowingly placed him in unreasonable danger, presumably effecting inappropriate punishment upon

him.4

Case 2:03-cv-05511-GEKP Document 41 Filed 06/22/06 Page 4 of 11
5

Pursuant to the Fourteenth Amendment, the government has no authority to punish a pretrial

detainee prior to an adjudication of guilt in accordance with due process of the law. Bell v. Wolfish,

441 U.S. 520, 535 (1979). However, not all restrictions imposed on a pretrial detainee amount to

punishment, as there is a distinction between imposing an inappropriate punitive measure on a

pretrial detainee and exercising necessary regulatory restraints. Bell, 441 U.S. at 536. In

ascertaining whether a particular behavior or condition was an inappropriate punitive measure, a

court must determine whether an alleged restriction was imposed for the purpose of punishing an

individual or whether it was incident to some other legitimate governmental purpose. Id. at 538.

In assessing the claims of both pretrial and convicted detainees with respect to prison conditions,

courts are cautioned not to become “enmeshed in the minutiae of prison operations.” Bell, 441 U.S.

at 562. 

Pretrial detainees asserting a constitutional violation based on non-medical conditions oftheir

confinement must prove that prison officials acted with deliberate indifference and that the prisoner

suffered a deprivation of “the minimal civilized measure of life’s necessities.” Kost v.

Kozakiewicz, 1 F.3d 176, 188 (3d Cir. 1993) (citing Wilson v. Seiter, 501 U.S. 294 (1991)). A lack

of due care by an official that results in unintended injury does not implicate an injury to life, liberty

or property that is actionable under the Due Process Clause. Davidson v. Cannon, 474 U.S. 344, 347

(1986). For example, where the violence suffered by a prisoner is at the hands of another prisoner,

liability under Section 1983 will lie “if there was intentional conduct, deliberate or reckless

indifference to the prisoner’s safety, or callous disregard on the part of prison officials.” Davidson

v. O’Lone, 752 F.2d 817, 828 (3d Cir. 1984). An example of such a case is found in Wade v.

Haynes, 663 F.2d 778 (8th Cir. 1981).

Case 2:03-cv-05511-GEKP Document 41 Filed 06/22/06 Page 5 of 11
6

In Wade, the plaintiff was an 18 year-old prisoner who was small in stature and had

previously been detained in a “special treatment unit” because he was designated as susceptible to

physical abuse from members of the general population. Wade, 663 F.2d at 781. The plaintiff was

subsequently assigned to a cell in the “administrative segregation unit” of the prison. Id. On the

same day, the warden moved two members from the general prison population into the plaintiff’s

cell, despite knowing that one of those inmates had been sent to the “administrative segregation

unit” for fighting and that it was recommended to separate the inmate from the general prison

population. Id. at 781. The plaintiff was then harassed and sexually assaulted by both of his

cellmates. Id. The Wade court concluded that the case had been properly presented to a jury, and

that the defendant prison officer was not entitled to the defense of immunity because there was

evidence that the officer had acted recklessly and with callous indifference to the plaintiff’s safety.

The case before this Court does not present equivalent evidence of recklessness or

indifference. Upon a review of the record evidence here, the Court concludes that even assuming

that the facts that Mr. Lassiter asserts are disputed, summary judgment in favor of the Defendants

is appropriate. In short, there is no evidence from which a reasonable jury could conclude that either

of the Defendants knew or could foresee that such an altercation between Mr. Lassiter and Mr.

Fordham would occur or that they acted with callous or reckless indifference with respect to

preventing the altercation.

The primary issue in this case, under the standard set forth in O’Lone, is for the Court to

determine whether the Defendants acted with callous or reckless indifference regarding Mr.

Lassiter’s safety. As stated in the Court’s April 28, 2005 Memorandum and Order in which the

Defendants’ motion to dismiss the complaint was denied in part, the callousness or recklessness

Case 2:03-cv-05511-GEKP Document 41 Filed 06/22/06 Page 6 of 11
5

 In making a determination with respect housing assignments for both Mr. Lassiter and

Mr. Fordham, the prison officials applied an objective analysis which included consideration of

each defendant’s current charges, prior felony and misdemeanor charges, the history of each

individual’s serious offenses, escapes, institutional disciplinary issues and alcohol and/or drug

abuse. Defendants’ Exs. C, D. The housing analysis also included a “check-off” area in which

the person completing the form could indicate whether a detainee presented certain “special

management issues.” Id. Mr. Lassiter and Mr. Fordham were each designated to suffer from a

substance abuse problem, and Mr. Lassiter was designated as a multi-state offender and a

potential risk for suicide. Id. at Ex.C. Mr. Fordham was also designated as being “wanted” in

New Jersey, and was considered a “violence threat.” Id. at Ex. D. Based on these objective

assessments, both Mr. Lassiter and Mr. Fordham were recommended to be placed in a maximum

security housing assignment. Defendants Exs. C, D. 

7

required to sustain a violation of Mr. Lassiter’s due process rights might be demonstrated if

Defendants had knowledge that Mr. Fordham was a violent individual who posed a significant threat

to himself or others. However, the record evidence developed during discovery and presented in

support of this motion demonstrates no such knowledge. 

The Court first notes that according to the evidence the prison conducted the same objective

analysis with respect to both Mr. Lassiter and Mr. Fordham before determining that each would be

appropriately placed in the maximum security housing unit.5 At that time, Mr. Fordham had no

history of needing institutional discipline and the behavioral file kept by the prison reflected no

altercations with corrections staff or other violent incidents. T. Buskirk Affidavit at ¶ 10. 

Secondly, with respect to Mr. Fordham’s medical condition, at the time Mr. Lassiter was

placed in the cell with Mr. Fordham, neither of the Defendants had any knowledge that Mr. Fordham

was either HIV positive or had AIDS. J. Smith Affidavit at ¶ 2; T. Buskirk Affidavit at ¶ 7.

Although Mr. Lassiter asserts that the prison classification rules require medical clearance before an

inmate may be placed in a cell in the general population, the Court notes that this fact is not material

to this dispute because, as discussed in this Court’s prior Memorandum and Order regarding the

Case 2:03-cv-05511-GEKP Document 41 Filed 06/22/06 Page 7 of 11
8

Defendants’ Motion to Dismiss the Complaint, the law does not require that inmates who are

infected with HIV or have AIDS be segregated from the general prison population. See, e.g.,

Hoover v. Watson, 886 F. Supp. 410, 417 (D. Del. 1995) (“the failure to segregate an AIDS-infected

prisoner from the general population fails to rise to the level of a constitutional violation”); Feigley

v. Fulcomer, 720 F. Supp. 475, 482 (E.D. Pa. 1989) (finding that failure to automatically segregate

inmates who have tested positively for the virus causing AIDS not cruel and unusual punishment);

Maddox v. Goode, Nos. 88-7880-83, 88-8211, 1989 WL 17544, at *2 (E.D. Pa. Feb. 27,

1989)(noting that there is no evidence of risk associated with being housed in a prison cell with

inmate who is HIV-positive or is suffering from any stage of AIDS); Oladipupo v. Austin, 104 F.

Supp. 2d 626, 635 (W.D. La 2000) (finding no affirmative duty under the Constitution to segregate

HIV-infected from non-infected detainees); Goss v. Sullivan, 839 F. Supp. 1532, 1536 (D. Wyo.

1993) (noting that the “weight of authorities” holds that failure to segregate HIV-infected prisoners

does not rise to the level of a constitutional violation). 

As already stated, Mr. Lassiter’s due process rights might be implicated if there were

evidence that one or both of the Defendants were aware that Mr. Fordham was HIV-infected or had

AIDS and posed a significant risk of violence directed against others. There is no evidence of such

knowledge here. In fact, the altercation that occurred between Mr. Lassiter and Mr. Fordham, by Mr.

Lassiter’s own account, arose from a dispute between the two men, and was not a “surprise” attack

or ambush by Mr. Fordham. M. Lassiter Dep. at 37:8-11; 38:6-22. In short, the altercation between

Mr. Lassiter and Mr. Buskirk appears to have been the type of altercation that, unfortunately, might

occur fairly frequently between cellmates in a prison who, for whatever reason, are not able to get

along peaceably. The Court is not unsympathetic to the difficulty Mr. Lassiter now may face with

Case 2:03-cv-05511-GEKP Document 41 Filed 06/22/06 Page 8 of 11
6

 The Court notes that Mr. Lassiter argues such a history was apparent because some of

Mr. Fordham’s prior charges included aggravated assault. As logical as this argument may seem,

the practicality of requiring all inmates who have had aggravated assault charges to be segregated

from other inmates is questionable. Moreover, the fact that “violence” was checked off as a

“special management” issue on Mr. Fordham’s housing assessment does not provide Mr. Lassiter

assistance in meeting his burden of establishing that the Defendants knowingly placed Mr.

Lassiter in danger of serious injury. “Violence” can describe an individual with a propensity to

wield weapons, throw objects, or other behavior that does not involve physical, person to person

contact. As noted above, Mr. Fordham’s housing assessment also indicated that he had no record

of requiring institutional discipline. This singular and general notation regarding violence is not

sufficient evidence from which a jury could conclude that either or both of the Defendants had

any indication that Mr. Fordham was a violent individual who was likely not only to physically

attack a cellmate with his person (as opposed to with an object), but also to do so in a manner

that could cause serious harm of the type potentially at issue here.

7

 In addition to arguing that the evidence is not sufficient to support Mr. Lassiter’s

claim, the Defendants alternatively argue that Messrs. Smith and Buskirk are entitled to qualified

immunity from this suit. In general, government officials performing discretionary functions are

shielded from liability for civil damages “insofar as 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, 817-18 (1982).

Courts apply a two-part test to determine whether qualified immunity applies in a

particular case. First, a court must consider whether the facts, considered in a light most

favorable to the allegedly injured party, show that the official’s conduct violated a constitutional

right. Saucier v. Katz, 533 U.S. 194, 201 (2001). Once it is shown that a constitutional right was

violated, a court must then consider whether the right was clearly established, such that the

official had reason to know the consequences of his or her specific actions. See Saucier, 533 U.S.

at 201; Anderson v. Creighton, 483 U.S. 635, 636-37 (1987); see also Berg v. County of

Allegheny, 219 F.3d 261, 272 (3d Cir. 2000). A “good faith” belief in the legality of conduct is

not sufficient to support a finding of qualified immunity. Parkhurst v. Trapp, 77 F.3d 707, 712

9

respect to his health as a consequence of a self-described “wrestling tussle” involving personal

belongings. M. Lassiter Affidavit at 39:7. However, absent evidence that Mr. Fordham had a history

of violence6 which either Mr. Buskirk or Mr. Smith knew about when placing Mr. Lassiter in the cell

with Mr. Fordham, a reasonable jury could not conclude that either of the Defendants violated Mr.

Lassiter’s due process rights under the applicable legal standards. There is no such evidence on the

record here. Therefore, the Defendants’ motion for summary judgment will be granted.7

Case 2:03-cv-05511-GEKP Document 41 Filed 06/22/06 Page 9 of 11
(3d Cir. 1996). Rather, a court must determine whether “a reasonable person could have

believed the defendant’s actions to be lawful in light of clearly established law and the

information he possessed.” Id. 

In this case, the Court has concluded that there is insufficient evidence to support a

constitutional claim. Therefore, the Court does not reach the issue of qualified immunity in the

context of this motion.

10

CONCLUSION

For the reasons discussed above, the Defendants’ Motion for Summary Judgment will be

granted. An appropriate Order follows.

S/Gene E.K. Pratter

Gene E.K. Pratter

United States District Judge

June 22, 2006

Case 2:03-cv-05511-GEKP Document 41 Filed 06/22/06 Page 10 of 11
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MELVIN LASSITER, PRO SE, :

Plaintiff :

vs. :

 :

TODD BUSKIRK, ET AL., :

Defendants : No. 03-5511

O R D E R

AND NOW, this 22nd day of June 2006, upon consideration of the Motion for Summary

Judgment of Defendants Buskirk and Smith (Docket No. 37) and the response thereto (Docket

No. 39), it is ORDERED that the Motion is GRANTED. The Clerk of Court is instructed to

enter judgment in favor of Defendants Todd Buskirk and James Smith, and to mark this case as

closed.

BY THE COURT:

S/Gene E.K. Pratter

GENE E.K. PRATTER

United States District Judge

Case 2:03-cv-05511-GEKP Document 41 Filed 06/22/06 Page 11 of 11