Judge recommends continuation of civil rights lawsuit | News, Sports, Jobs



A US judge presiding in Johnstown has recommended that two former Bedford County jail employees be tried as defendants in a civil rights lawsuit brought by a former prisoner, who was seriously injured in the attack by his cellmate six years ago.

Wounded inmate Jeffrey Scott Miller, now 58, claims in his trial that he was stabbed by James Howard Dively II, 38, with a sharpened toothbrush.

Dively, according to the lawsuit, also beat Miller with his fists and feet.

Miller lost vision in his left eye due to the stab wound and suffered broken ribs and facial fractures. He was transported by medical helicopter to Pittsburgh for treatment.

Dively eventually pleaded no contest to aggravated assault and was sentenced in 2019 by Bedford County Judge Travis W. Livengood to 15 months to five years in prison followed by 10 years probation.

One of the issues raised in the lawsuit was that Livengood ordered that Dively be transferred from Bedford County Jail to Torrance State Hospital for treatment of his mental health issues.

The judge’s order was issued four months before the assault.

Prison officials maintain they were not informed of the judge’s order.

In January 2018, Miller, through Altoona attorney Christopher R. Jancula, filed a civil rights lawsuit in U.S. District Court in Johnstown.

The defendants included Bedford County, Bedford County Correctional Facility, Warden Troy Nelson and Corrections Officer Gary Wayne Habinyak, who was in charge of the jail’s restricted housing unit where the two inmates were being held in custody.

U.S. District Judge Kim R. Gibson requested an initial review of the lawsuit by Magistrate Judge Keith A. Pesto.

Last month, Pesto recommended that Bedford County and its correctional facility be removed from the trial, but denied Nelson and Habinyak’s removal.

The magistrate gave both parties 14 days to object to his decision, and in early March, Hollidaysburg attorney Mary Lou Maierhofer, representing the defendants, filed objections to Pesto’s decision restraining Nelson and Habinyak as defendants.

In a March 2 filing, she claimed that Miller had not filed a lawsuit against the prison seeking administrative remedies.

She said the federal Prisoner Litigation Reform Act requires Miller to seek administrative remedies as a precursor to a civil rights lawsuit.

She also argued that prison officials can only be held responsible for the conditions an inmate faces if they have knowledge of a “substantial risk of serious harm and ignored that risk.”

Neither Nelson nor Habinyak acted with “deliberate indifference” towards the possible harm Miller faced when he was placed as a cellmate with Dively, Maierhofer said.

She also argued that the two prison officials were protected by immunity as part of their job.

Jancula late last week responded to Maierhofer’s objections, retorting that Miller is not required to file grievances under the Prisoner Litigation Reform Act.

He argued that “Prison officials clearly ignored the known risk (to Miller as Dively’s cellmate) and failed to take reasonable and straightforward steps to separate Miller from Dively.”

Jancula said prison officials acted with “deliberate indifference” to the danger that Miller faced.

In the circumstances of the case, the two prison officials are not protected by the doctrine of qualified immunity, Jancula argued.

Pesto, in a lengthy notice, reported that Miller, when first incarcerated in September 2015, was placed in a cell with Dively but was removed from the cell after one night because Dively had threatened, in front of an officer, to beat Miller.

Pesto noted that it was unclear why Miller was put back in a cell with Dively.

Pesto went on to note that Dively’s mental illness was no secret at the Bedford County facility.

He cited testimonies collected from officers which indicated “all prison staff knew that Dively was unstable and mentally aberrant.”

Pesto also pointed out that Bedford County Jail is a small facility and on the day of the incident with Dively, a lot was going on.

Only two agents were on duty at the RHU. They were responsible for checking inmates on suicide watch every 15 minutes and were to help book 13 new inmates.

Referring to Dively’s multiple acts of violence cited in the incident investigation, Pesto said, “A reasonable jury might conclude that Dively’s behavior posed a more than ordinary threat to any cellmate. A jury might conclude that this was known to all prison staff, including the defendants.

Miller’s injuries were, according to Petso, “the result of a perfect storm.”

Miller was housed in a “Understaffed and overcrowded RHU, and duty officials were also responsible for a busy reservation area,” he noted.

“Miller was in a cell with Dively, an inmate who shouldn’t have been in jail in the first place, an inmate who was put in the RHU because he was known to be mentally ill, and he recognized that he should be in one cell because his behavior has led to conflicts with other inmates”, Pesto said.

Jancula explained that the various objections to Pesto’s decision will be considered by Judge Gibson.

If he rejects the objections, the case will be tried in front of Pesto, Jancula said.



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