KIRKLAND v. DISALVO et al

OCR transcription for search; preserved printed pages are authoritative

Case 2:24-cv-00073-RJC-MPK Document 101
Filed 12/08/25 Page 1 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TAVON THOMAS KIRKLAND,
Plaintiff,
) )
V.
MR. DISALVO, Corrections Officer 4, et al., ) )
Defendants.
) ) ) ) )
Civil Action No. 2:24-73 District Judge Robert J. Colville Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 64, 76
REPORT AND RECOMMENDATION
I. RECOMMENDATION
Pending before the Court are the parties' cross-motions for summary judgment. For the following reasons, it is respectfully recommended that the Court deny the Motion for Summary Judgment filed by Plaintiff Tavon Thomas Kirkland ("Kirkland"), ECF No. 64. It is further recommended that the Court grant the Motion for Summary Judgment filed on behalf of Defendant Corrections Officers Mr. DiSalvo ("DiSalvo"), Mr. Scherer ("Scherer"), Mr. Cavaliere ("Cavaliere"), Mr. Rankin ("Rankin"), and Mr. Lynn ("Lynn") (collectively, "Corrections Defendants"). ECF No. 76.
II. REPORT
A. FACTUAL BACKGROUND
Kirkland is a prisoner in the custody of the Pennsylvania Department of Corrections ("DOC"). ECF No. 41. He brings this action against the Corrections Defendants for the violation of his Eighth Amendment rights arising from their alleged deliberate indifference to his medical needs, the use of excessive force through a single deployment of "oc" spray,1 and verbal
1 The Court understands Kirkland's reference to "oc" spray as oleoresin capsicum spray.
1
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO

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harassment “before and during the use of excessive force.” Id. at 8. His claims arise out of a series
of incidents that occurred while he was housed in the Restricted Housing Unit (“RHU”) at the
State Correctional Institution at Fayette (“SCI-Fayette”).
Kirkland’s version of events begins on January 19, 2022, when he says he felt faint, short
of breath, and experienced drowsiness. Id. at 3. Kirkland asked Rankin, Cavalier, and Lynn for
medical assistance, but his request was declined. Kirkland’s medical records contradict this
allegation and reflect that he was seen by medical staff at 3:32 p.m. with complaints of dizziness
lasting over a week. ECF No. 79-15 at 36. He was assessed with “possible vertigo,” prescribed
medication, and instructed to return for sick call that evening. Id. at 37. At 9:17 p.m., medical staff
were called to Kirkland’s block because he had “many complaints.” Id. at 38. Kirkland refused a
medical assessment and expressed that he was “irate towards security staff.” Id.
Kirkland asserts that his condition worsened on January 20, 2022. ECF No. 41 ¶ 10. He
placed a sign on his cell door window requesting medical assistance. He alleges that Defendants
Rankin, Cavaliere, and Scherer read the sign but laughed and said, “nobody cares.” Id. According
to Kirkland, he tore his bedsheet, tied it around the cell light fixture, and told Defendant Scherer
that he would kill himself if he did not receive medical attention. Kirkland alleges that Scherer
instructed Kirkland to remove the sign on his cell window and represented that he would call for
medical attention. Kirkland says that he followed Scherer’s instructions but rather than receiving
medical attention, Sherer and Defendant Lynn moved him to the RHU and stripped him of his
clothing, except for a t-shirt, underwear, and socks. Id. While being led to a cell, Kirkland says his
dizziness caused him to fall. He was placed in a restraint chair to be assessed by medical staff.
Kirkland’s medical records reflect that he was assessed on January 20, 2022, at 3:18 p.m.
for complaints of dizziness. Id. at 39-42. He was alert with no shortness of breath, and normal
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heartbeat, oxygen levels, and blood pressure. Id. at 39. Medical staff documented Kirkland’s
statement that he was “acting so he could see medical.” Id. The prison physician was notified, and
Kirkland was told to follow up at evening sick call. Kirkland complains that after the exam, he
was improperly placed “in a camera cell, without his cell property.” Id.
The events of that evening are disputed by the parties. According to Kirkland, he again
asked for medical assistance. He alleges that he “was ignored by staff.” ECF No. 41 at ¶ 10.
Kirkland then covered the cell camera. When Cavaliere approached, Kirkland uncovered the
camera and asked the officer to explain his placement in a camera cell, which Kirkland argued
violated DOC policy. Kirkland alleges Cavaliere responded with derogatory racial and sexual
preference epithets and called him a “pedophile.” Id. Kirkland again covered his cell camera.
Rankin approached and Kirkland uncovered the camera and reported Cavaliere’s conduct. Rankin
laughed and repeated the name-calling. Kirkland again covered his camera. At this point, Rankin
warned Kirkland “that a Lieutenant was on his way to spray him.” Id. Kirkland uncovered the
camera when he saw Lt. DiSalvo arrive. Kirkland challenged his placement in an observation cell
and requested placement in a medical department psychiatric observation cell. DiSalvo declined
Kirkland’s request. Kirkland then covered his air vent. Rankin and DiSalvo returned and,
according to Kirkland, “excessively sprayed” his cell interior with OC spray. Id. Kirkland contends
that he surrendered by asking to be cuffed, but DiSalvo continued to spray him until the can was
empty. He further alleges that he experienced “intense pain and suffering” because he was not
permitted to decontaminate and remove the OC spray from his skin until the next day. Id.
The Corrections Defendants tell a different story and provide documentary and video
evidence in support. Security Officer DiSalvo’s statement reflects that he was notified by the shift
commander that Kirkland was ripping his clothes and putting them around his neck. ECF No. 79-
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5 at 20. DiSalvo arrived on the cell block and gave Kirkland multiple orders to stop and turn over
the torn clothing. Kirkland refused and, according to DiSalvo, “1 burst of OC was administered.”
Id. The burst lasted approximately 5 seconds. ECF No. 78 ¶ 35 (citing ECF No. 79-7 at 20:10:55-
20:11:00). DiSalvo radioed staff to notify the Shift Commander and medical staff.
The Court has reviewed Defendants’ video evidence of the incident and Kirkland’s
decontamination in support of their Motion for Summary Judgment. ECF Nos. 79-7, 79-8.
Kirkland does not challenge the authenticity or accuracy of the video evidence which contradicts
Kirkland’s allegations. The Court’s review confirms the accuracy of the timeline of events in the
DOC Video Review. ECF No. 79-5 at 21-22.
[Exhibit F - ECF No. 79-7]
20:02:26 	Kirkland can be seen standing at cell door.
20:02:34 	Kirkland places his hand over in-cell camera.
20:04:00 	Kirkland begins ripping cloth mask.
20:04:35 	Kirkland ties strings together and places them around his neck.
20:05:20 	Kirkland appears to be tying string to something in cell. He steps down and
begins ripping his t-shirt.
20:09:00 	Kirkland ties strands of t-shirt together.
20:10:57 	OC is administered into the cell through the cell wicket for at most 5
seconds. Kirkland’s back faced the cell door and he walks toward the door
while OC spray was administered.
20:11:17 	Kirkland is visually strip-searched at the door.
20:12:37 	Kirkland climbs on the cell sink and jumps to floor.
20:13:00 	Kirkland runs between back door of cell and cell door for several minutes
and sits on cell floor before obeying instructions.
20:18:36 	Kirkland is visually strip-searched a second time.
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20:20:42 	The cell door is opened by responding officers, and a spit-hood is applied.
20:21:28 	Kirkland kneels on the bed and leg shackles are applied.
20:21:00 	Kirkland is escorted from cell to medical unit.
[Exhibit G – ECF No. 79-8 (time reflects minutes elapsed)]
00:50 	Staff initiate visual search of Kirkland from exterior of cell.
02:22 	Kirkland is issued clean boxers and is secured in handcuffs attached to a
tether.
03:34 	The cell door is opened, and a spit hood is applied to the Kirkland.
04:30 	Kirkland kneels on the bunk and leg shackles are applied. Officers direct
Kirkland to back out of cell.
05:20 	Kirkland is escorted to medical unit.
06:10 	A 	nurse 	decontaminates 	Kirkland’s 	eyes 	and 	face 	and 	assesses 	his
condition.
08:10 	Photos are taken of Kirkland’s face, hands, and ankles.
10:10 	Kirkland states he suicidal.
12:20 	A nurse places a phone call to Dr. Saavadra, a psychiatrist.
23:20 	DiSalvo explains next steps to Kirkland.
23:48 	Kirkland is escorted to a clean cell and leg shackles are removed, spit hood
is removed, and staff leave the cell and secure the door.
29:30 	Handcuffs and tether are removed through cell wicket. Kirkland is issued
clean t-shirt and boxers and soap. Kirkland’s shower is turned on to permit
him to complete decontamination process.
See also ECF No. 79-5 at 36 (reflecting that shower was turned on at 20:51 so he could further
decontaminate from OC exposure).
Medical records corroborate that upon entry in the medical unit, a nurse flushed Kirkland’s
face and eyes and reported that Kirkland did not complain of pain or shortness of breath, and that
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his pulse and pulse ox were within normal limits. ECF No. 78 ¶ 42. A psychiatric provider cleared
Kirkland to remain on his cell block in a camera cell with restrictions (t-shirt, boxers, security
blankets, Styrofoam trays, paper utensils, and no razor). Id. ¶ 45. Kirkland was provided two
security blankets. ECF No. 79-6 at 13.
B. 	PROCEDURAL HISTORY
Kirkland commenced this action on January 19, 2024, and was granted leave to proceed in
forma pauperis. ECF Nos 1,7. In his initial Complaint, Kirkland alleged claims for excessive use
of force and verbal abuse under the Eighth Amendment and for sexual discrimination in violation
of his right to equal protection under the Fourteenth Amendment. ECF No. 10. After resolution of
the Corrections Defendants’ Motion for Judgment on the Pleadings, Kirkland filed an Amended
Complaint. ECF Nos. 17, 40, 41. In his Amended Complaint, Kirkland alleges Eighth Amendment
claims for deliberate indifference to his serious medical needs, excessive use of force, and verbal
harassment. ECF No. 41 ¶ 11. Kirkland seeks an award of declaratory relief and compensatory and
punitive damages. Id. ¶¶ 13-15.
The parties conducted discovery and filed the pending Motions for Summary Judgment.
ECF Nos. 64, 76. The Corrections Defendants filed a Concise Statement of Material Facts,
Appendix, and Brief in Support of Motion for Summary Judgment and a Response to Plaintiff’s
Motion for Summary Judgment. ECF Nos. 77-80. The Court ordered Kirkland to file a response
to the Defendants’ Motion for Summary Judgment by July 28, 2025. ECF No. 81. He filed a
Motion for Extension of Time, which this Court granted and extended the time for Kirkland to
respond to September 5, 2025. ECF Nos. 82, 83.
On August 28, 2025, this case was stayed due to a cyber event impacting the Pennsylvania
Office of Attorney General. ECF No. 87. The stay was lifted on October 3, 2025, and on October
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6, 2023, Kirkland was instructed that his response to Defendants’ Motion for Summary Judgment
was due by October 31, 2025, and that no further extensions would be granted. ECF No. 91.
Kirkland advised the Court by letter dated October 10, 2025, and postmarked October 14, 2025,
that he was transferred to a new facility as of September 16, 2025. ECF No. 92. Mail sent to
Kirkland before October 10, 2025 has not been returned to the Court as undeliverable. That said,
in the interest of justice, on November 7, 2025, the Court sent Kirkland copies of Defendants’
Motion for Summary Judgment and supporting documents and extended the deadline for his
response to December 1, 2025. ECF No. 97. As of this date, Kirkland has not filed a brief in
opposition to the Corrections Defendants’ Motion for Summary Judgment or a response to their
Concise Statement of Facts.
The pending Motions for Summary Judgment are ripe for disposition.
B. 	STANDARD OF REVIEW
Summary judgment is properly entered “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Under this standard
“the mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “[A] fact is
‘material’ where ‘its existence or nonexistence might impact the outcome of the suit under the
applicable substantive law.’” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019)
(citations omitted). Further, “[a] dispute is ‘genuine’ if ‘a reasonable jury could return a verdict
for the nonmoving party.’” Clews v. Cnty. of Schuylkill, 12 F.4th 353, 358 (3d Cir. 2021) (quoting
Anderson, 477 U.S. at 248).
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The moving party bears the initial burden of demonstrating to the court that the undisputed
evidence is insufficient to support one or more essential elements of the non-moving party’s
claim. Celotex, 477 U.S. at 322; see also Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135,
140 (3d Cir. 2004).
“[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.... Where the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal quotations marks
omitted). In making this assessment, the court must view the facts in the light most favorable to
the nonmoving party and must draw all reasonable inferences and resolve all doubts in favor of
the nonmoving party. Matreale v. N.J. Dep’t of Mil. & Veterans Affs, 487 F.3d 150, 152 (3d Cir.
2007); Woodside v. Sch. Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001). If
the non-moving party “fails to make a showing sufficient to establish the existence of an element
essential to [the non-movant’s] case, and on which [the non-movant] will bear the burden of proof
at trial,” Rule 56 requires the entry of summary judgment because such a failure “necessarily
renders all other facts immaterial.” Celotex, 477 U.S. at 322–23; Jakimas v. Hoffman-La Roche,
Inc., 485 F.3d 770, 777 (3d Cir. 2007).
Kirkland is proceeding pro se. Pro se pleadings are held to “less stringent standards than
formal pleadings drafted by lawyers[.]” 	Haines v. Kerner, 	404 U.S. 519, 520-21 (1972).
Nonetheless, at the summary judgment stage, a court need not credit mere allegations or assertions
unsupported by evidence. See Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). “[A]
pro se plaintiff is not relieved of his obligation under Rule 56 to point to competent evidence in
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the record that is capable of refuting a defendant’s motion for summary judgment.” Dawson v.
Cook, 238 F. Supp. 3d 712, 717 (E.D. Pa. 2017) (citation omitted); see also Mala v. Crown Bay
Marina Inc., 704 F.3d 239, 245 (3d Cir. 2013).
C. 	DISCUSSION
Kirkland and the Corrections Defendants have each filed a Motion for Summary Judgment.
The United States Court of Appeals for the Third Circuit has explained that cross-motions “are no
more than a claim by each side that it alone is entitled to summary judgment, and the making of such
inherently contradictory claims does not constitute an agreement that if one is rejected the other is
necessarily justified or that the losing party waives judicial consideration and determination whether
genuine issues of material fact exist.” Transportes Ferreos de Venezuela II CA v. NKK Corp., 239
F.3d 555, 560 (3d Cir. 2001) (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d
Cir.1968)). “When confronted with cross-motions for summary judgment ‘the court must rule on
each party’s motion on an individual and separate basis, determining, for each side, whether a
judgment may be entered in accordance with the Rule 56 standard.’” Bowman v. Wahl, No. 2:19-
CV-3092, 2021 WL 2588951, at *3 (E.D. Pa. June 24, 2021) (quoting Canal Ins. Co. v.
Underwriters at Lloyd’s London, 333 F. Supp. 2d 352, 353 n.1 (E.D. Pa. 2004), aff’d, 435 F.3d 431
(3d Cir. 2006)). See also Repa v. Napierkowski, No. 1:19-CV-101, 2021 WL 9406786, at *3 (W.D.
Pa. Sept. 30, 2021).
Accordingly, the Court will consider each Motion for Summary Judgment separately,
applying the standard of review set forth in Rule 56 for each motion.
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1. 	Corrections Defendants’ Motion for Summary Judgment
a. 	Deliberate Indifference to Serious Medical Needs
“The Eighth Amendment, through its prohibition on cruel and unusual punishment,
prohibits the imposition of ‘unnecessary and wanton infliction of pain contrary to contemporary
standards of decency.’” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting
Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). Thus, “prison
authorities [may not] deny reasonable requests for medical treatment ... [when] such denial exposes
the inmate ‘to undue suffering or the threat of tangible residual injury.’” Palakovic v. Wetzel, 854
F.3d 209, 228 (3d Cir. 2017) (quoting Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d
326, 346 (3d Cir. 1987) (in turn quoting Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976)).
A plaintiff who alleges an Eighth Amendment medical claim must show that “(1) he had a
serious medical need; (2) the defendants were deliberately indifferent to that need; and (3) the
deliberate indifference caused harm to the plaintiff.” Durham v. Kelley, 82 F.4th 217, 229 (3d Cir.
2023).
A medical need is serious if it “has been diagnosed by a physician as requiring treatment”
or if it “is so obvious that a lay person would easily recognize the necessity for a doctor’s
attention.” Monmouth Cnty., 834 F.2d at 347 (quoting Pace v. Fauver, 479 F. Supp. 456, 458
(D.N.J. 1979), aff’d, 649 F.2d 860 (3d Cir. 1981)). Additionally, “if ‘unnecessary and wanton
infliction of pain’ … results as a consequence of denial or delay in the provision of adequate
medical care, the medical need is of the serious nature contemplated by the eighth amendment.”
Id. (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
Whether a prison official was deliberately indifferent under the Eighth Amendment is
determined under a subjective standard. Farmer v. Brennan, 511 U.S. 825, 840 (1994). “To act
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with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of
serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009). Thus, the prison official must
have known of the substantial risk of serious harm and must have disregarded that risk by failing
to take reasonable measures to abate it. Farmer, 511 U.S. at 837. “[T]he official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Id.
Here, Corrections Defendants argue that summary judgment is appropriately entered in
their favor because complaints of dizziness alone without accompanying symptoms are not a
serious medical need and because Kirkland’s medical records establish that his complaints,
including those related to his mental health, were assessed and treated. ECF No. 77 at 8-12.
Kirkland does not challenge the authenticity or accuracy of his medical records. Those records,
viewed in the light most favorable to him, reflect that after each complaint to a Corrections
Defendant, Kirkland was timely assessed by medical personnel for his complaints of dizziness.
ECF No. 79-15 at 36-56. He was prescribed medication to treat his symptoms on January 19, 2022,
and medication changes were made when his symptoms failed to improve. In addition, as to
Kirkland’s mental health, his records reflect that he was under the care of a psychiatrist since at
least December 21, 2021, who was consulted after the incident at issue to ensure no further
treatment was necessary and that his placement was appropriate. Id. at 7-30, 42-45; ECF No. 79-
8 (timestamp 10:10-12:20).
Kirkland fails to point to any contrary evidence to suggest that the Corrections Defendant
had grounds to believe that prison medical personnel were mistreating or not treating him that may
support a finding of deliberate indifference. See Pearson, 850 F.3d at 543 (non-medical staff not
deliberately indifferent “for failing to second-guess the medical staff’s appraisal of the situation”);
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George v. Smock, No. 23-1519, 2023 WL 4447028, at *1 (3d Cir. Jul. 11, 2023) (citing Parkell v.
Danberg, 833 F.3d 313, 337 (3d Cir. 2016)). Thus, in the absence of a genuine issue of material
fact, it is recommended that the Court grant Defendants’ Motion for 	Summary Judgment as to
Kirkland’s Eighth Amendment deliberate indifference to medical needs claim.
b. 	Excessive Force
An Eighth Amendment excessive force claim also has an objective and subjective
component. Gibson v. Flemming, 837 F. App’x 860, 862 (3d Cir. 2020) (citing Hudson v.
McMillian, 503 U.S. 1, 8, (1992)).
The defendant must act with a “sufficiently culpable state of mind,” and the conduct
must be objectively harmful enough to violate the Constitution. Wilson v. Seiter,
501 U.S. 294, 298, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). In evaluating the
subjective component of an excessive force claim, the Court should consider
“whether force was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.” Ricks v. Shover, 891 F.3d 468, 480
(3d Cir. 2018) (citations omitted). Several factors guide this analysis: “(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.” Id. (internal quotations omitted). In
addressing the objective component of an Eighth Amendment claim, the question
is whether the injury was more than de minimis. Fuentes v. Wagner, 206 F.3d 335,
345 (3d Cir. 2000). The use of chemical agents to subdue recalcitrant prisoners is
not cruel and unusual when reasonably necessary. See Soto v. Dickey, 744 F.2d
1260, 1270 (7th Cir. 1984).
Id., 837 F. App’x at 862.
In this case, Defendants present video evidence to challenge the veracity of Kirkland’s
claims and to argue that the use of force did not violate his Eighth Amendment rights. At the
summary judgment stage, when available video completely refutes an inmate’s claims that
excessive force was used against him, and the video evidence does not permit an inference that
prison officials acted maliciously and sadistically, summary judgment is appropriate. Tindell v.
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Beard, 351 F. App’x 591, 595 (3d Cir. 2009) (citing Scott v. Harris, 550 U.S. 372 (2007) (relying
on video in assessing summary judgment evidence)). Such is the case here.
Video of the complained of incident reflects that Kirkland was preparing to harm himself
by hanging. Officers sprayed the interior of Kirkland’s cell with OC spray when he failed to
comply with instructions to turn over the rope he was visibly fashioning from a torn t-shirt. Thus,
the use of force was required to prevent Kirkland from hurting himself. The undisputed medical
records and video evidence also confirm that he suffered no injuries beyond the temporary
discomfort of the OC spray and confirm that he was decontaminated as soon as practical once he
cooperated with corrections staff. Reviewing the evidence in the light most favorable to Kirkland
establishes that no reasonable finder of fact would conclude that any Defendant acted maliciously
or sadistically to cause harm. Instead, the use of force was reasonable under the circumstances.
Therefore, summary judgment is properly entered in the Correction Defendants’ favor as to
Kirkland’s Eighth Amendment excessive force claim.
c. 	Eighth Amendment Claim for Verbal Harassment
The Corrections Defendants move for summary judgment in their favor as to Kirkland’s
Eighth Amendment claim against Cavaliere and Rankin for verbal harassment and name-calling.
ECF No.18 at 3-4. The United States Court of Appeals for the Third Circuit has held that a claim
fails as a matter of law if based on “allegedly cruel words.” Manuel v. Capozza, No. 24-1396, 2024
WL 3594363, at *3 (3d Cir. July 31, 2024) (citing Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015)
(explaining that “most verbal harassment by jail or prison guards does not rise to the level of cruel
and unusual punishment”)). See also Robinson v. Taylor, 204 F. App’x 155, 156 (3d Cir. 2006)
(“It is well settled that verbal harassment of a prisoner, although deplorable, does not violate the
Eighth Amendment.”).
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The video evidence, viewed in the light most favorable to Kirkland, confirms that no name-
calling occurred during the deployment of OC spray, and that no verbal interaction placed him at
risk of further injury. Thus, he cannot establish 	a constitutional violation. See Ledcke v.
Pennsylvania Dep’t of Corr., 655 F. App’x 886, 888-89 (3d Cir. 2016) (per curiam) (detainee’s
“claims of verbal harassment fail as a matter of law”). Therefore, it is recommended that the Court
grant the Motion for Summary Judgment as to Kirkland’s Eighth Amendment claim for verbal
harassment.
2. 	Kirkland’s Motion for Summary Judgment
Kirkland moves for summary judgment on both claims. ECF No. 64. In his supporting
brief, he asserts that the Court must accept his allegations as true and grant summary judgment in
his favor based on two exhibits. ECF No. 65.
First, as to his deliberate indifference medical claim, Kirkland presents one page of his
January 19, 2022, medical record that reflects his report of dizziness while lying down, and that
he complained that he had dizziness for one week. ECF No. 65-1. The Corrections Defendants
present the second page of Kirkland’s cited medical record which reflects that on the same date
and at the same sick call, Kirkland was provided medication and instructed to return that evening
for reassessment. ECF No. 79-15 at 37. As to Kirkland’s excessive force claim, he presents a
Misconduct Report that reflects that at 2:45 p.m. on January 20, 2022, he refused to obey several
orders to uncover his cell window. ECF No. 65-2. The Misconduct Report was not served on
Kirkland because he was placed on restriction, and was already confined in the RHU.
Kirkland asserts that based on these exhibits and his boilerplate summary of applicable
case law, “he has succeeded to establish an Eighth Amendment violation … [and] is entitled to
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Judgment” on both his deliberate indifference to medical needs and excessive force claims. ECF
No. 65 at 6, 8.
Contrary to Kirkland’s assessment of the law and evidence, and for the reasons set forth in
the Court’s discussion of the Correction Defendants’ Motion for Summary Judgment, Kirkland
fails to establish that he is entitled to summary judgment in his favor as a matter of law. He fails
to present evidence to permit any reasonable juror to conclude that he was not provided timely
medical care for dizziness or for any other medical condition, or that any Defendant was
deliberately indifferent to his medical needs. He also fails to present any evidence that the amount
of force used in the deployment of OC spray was “excessive” in relationship to the need of force
required to gain his compliance while he was actively attempting self-harm. Thus, it is
recommended that the Court deny Kirkland’s cross-motion for summary judgment.
D. 	CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court deny Kirkland’s
Motion for Summary Judgment, ECF No. 64. It is further recommended that the Court grant the
Motion for Summary Judgment filed on behalf of the Corrections Defendants, ECF No. 76, and
enter judgment in favor of Defendants.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule
72.D.2, the parties may file written objections within fourteen days, or seventeen days for
unregistered ECF Users. Objections are to be submitted to the Clerk of Court, United States
District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file
objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir.
Case 2:24-cv-00073-RJC-MPK Document 101 Filed 12/08/25 Page 15 of 16

Case 2:24-cv-00073-RJC-MPK Document 101
Filed 12/08/25
Page 16 of 16
2011). Any party opposing objections may respond to the objections within 14 days in accordance with Local Civil Rule 72.D.2.
Dated: December 8, 2025
Respectfully submitted, Maureen Kelly
-
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
cc: The Honorable Robert J. Colville United States District Judge
All counsel of record by Notice of Electronic Filing
Tavon Thomas Kirkland MY6189 SCI Somerset 1590 Walters Mill Road Somerset, PA 15510-0001
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