2002 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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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Recommended Citation

"Smith v. Mensinger" (2002). 2002 Decisions. Paper 343.

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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 nonintervening 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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