MALACHY E. MANNION, District Judge.
Plaintiff, Lavell Bone, an inmate formerly confined
Plaintiff alleges that on September 6, 2012, at approximately 11:30 am, Defendant Bastian, violated his Eighth Amendment rights while escorting Plaintiff to the shower. (Doc. 1, complaint). Plaintiff claims that he asked Defendant Bastian if he would call the mental health department for Plaintiff to speak to a psychologist because he was "hearing voices in [his] head and that the voices were telling [him] to kill [himself]."
On September 2, 2014, Plaintiff filed the instant action in which he alleges that he was wrongfully issued a misconduct report on September 6, 2012 and wrongfully held in restraints from September 6 through September 8, 2012.
Presently before the Court is Defendants' motion for summary judgment or, in the alternative, motion to dismiss. (Doc. 22). The motion has been fully briefed and is ripe for disposition. For the reasons that follow, Defendants' motion for summary judgment will be granted.
Plaintiff's claims are filed pursuant to 28 U.S.C. §1331, in accordance with
Defendant's pending dispositive motion is supported by evidentiary materials outside the pleadings. Federal Rule of Civil Procedure 12(d) provides in part as follows:
Fed.R.Civ.P. 12(b)(d).
This Court will not exclude the evidentiary materials accompanying the Defendant's motion. Thus, the motion will be treated as solely seeking summary judgment.
Pursuant to Federal Rule of Civil Procedure 56(a) "[t]he court shall grant summary judgment 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);
A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law.
When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party.
From the pleadings, declarations and exhibits submitted therewith, the following facts can be ascertained as undisputed.
On April 22, 2010, Lavell Bone was sentenced in the United States District Court for the Northern District of Georgia to a 461 month term of incarceration for Armed Bank Robbery and Use of a Firearm During a Crime of Violence, in violation of 18 U.S.C. §§2113(a) and (d), 1951, and 924(c)(1)(A)(ii). (Doc. 33-1 at 8-9, Public Information Inmate Data).
From October 26, 2009 through December 22, 2014, while housed in the SMU at USP-Lewisburg, Bone has been sanctioned twenty-five times for
On September 6, 2012, Plaintiff was issued two incident reports.
Incident Report No. 2347875, issued by Lieutenant Saylor, charged Bone with Threatening Another with bodily harm and Refusing an order, in violation of Codes 203 and 307, respectively. (Doc. 33-1 at 116, Incident Report No. 2347875). The Incident Report stated the following:
Officer Crawford wrote Incident Report No. 2347876, charging Bone with the prohibited act of Assault, a violation of Code 224. (Doc. 33-1 at 67, Incident Report). He described the incident as follows:
On the above date at 12:00 pm, I had entered the 3 floor shower area to escort I/M Bone #60154-019 back to his assigned cell. After I had taken the lock off the wicket to restraint I/M Bone #60154-019 he threw an unknown substance. The substance hit this writing officer in the neck and chest area.
After being assaulted with the liquid substance, Officer Crawford removed himself from the area and notified the G-Block Lieutenant. (
At approximately 12:51 p.m., a use of force team was assembled to conduct a calculated use of force. (Doc. 33-1 at 10-13, Form 583 Report of Incident). At approximately 12:51 p.m., Defendant, Lieutenant Knapp conducted a debriefing video concerning the calculated use of force on Bone. (Doc. 24, Video (sealed document)). During the videotaped debriefing conducted on September 6, 2012, prior to the calculated use of force, the following information was provided by Defendant Knapp:
"My name is Lieutenant Knapp. The date is September 6, 2012." . . . . "[W]e are currently in the Special Management Unit, specifically G-Block, of the USP Lewisburg, due to inmate Bone, first name Lavell, Register No. 60154-019, for engaging in disruptive behavior, displaying signs of imminent violence, and assaulting staff. Specifically, at approximately 12:00 p.m., the G-Block Officer entered the shower area of the third floor of G-Block, inmate Bone threw an unknown liquid substance from a milk carton at the Officer, striking the Officer on the side of the upper body and face. The liquid substance had a distinct odor of urine. The Officer then notified the Lieutenant's office. When the Lieutenant arrived on the third floor shower area, the inmate began to make threatening statements at the Lieutenant, stating "come on, mother fucker, come get some more piss." Inmate Bone is a 29 year old black male with STG assignments of assaulting a correctional officer, history of arson, and posted picture filing. He has an extensive disciplinary history to include possession of a weapon, refusing orders and indecent exposure. He is an in-custody high security level inmate with a projected release date of March 2042. Warden Thomas has been briefed of the situation and has given authorization to assemble a Use of Force team to place inmate Bone into ambulatory restraints due to his disruptive behavior, displaying signs of imminent violence, and assaulting staff. The Warden has also authorized the use of chemical munitions in the event that inmate Bone refuses to submit to ambulatory restraints or becomes combative during the placement into ambulatory restraints. In the event that chemical agents are utilized, inmate Bone's medical record has been reviewed and the use of chemical agents is authorized. If chemical agents are utilized, we will decontaminate the inmate in the G-Block third floor shower area . . .
Following the use of force and application of restraints, health services staff performed an injury assessment of Plaintiff. (Doc. 33-1 at 119, Health Services Clinical Encounter). No significant findings or apparent distress was noted.
Plaintiff remained in restraints until 6:00 p.m. on September 8, 2012. (Doc. 33-1 at 27, Restraint Check Form). While housed in restraints in G-Block first floor cell #126, Plaintiff was checked methodically by staff pursuant to Program Statement 5566.06, Use of Force and Application of Restraints. (Doc. 33-1 at 169-191, Program Statement 5566.06; 28 C.F.R. §552.24.48. BOP policy authorizes staff "to apply physical restraints necessary to gain control of an inmate who appears to be dangerous because the inmate: (a) Assaults another individual; (b) Destroys government property; (c) Attempts suicide; (d) Inflicts injury upon self; or (e) Becomes violent or displays signs of imminent violence."
BOP policy provides that "[r]estraint equipment or devices (e.g. handcuffs) may not be used . . . [i]n a manner that causes unnecessary physical pain or extreme discomfort."
Additionally, BOP policy directs that, "[w]hen the inmate is placed in four-point restraints, qualified health personnel shall initially assess the inmate to ensure appropriate breathing and response (physical or verbal) and "shall also ensure that the restraints have not restricted or impaired the inmate's circulation." (Doc. 33-1 at 169-191, Program Statement 5566.06 at 14, §10(f); 28 C.F.R. §552.24(f)). Specifically, "[w]hen inmates are so restrained, qualified health personnel ordinarily are to visit the inmate at least twice during each eight hour shift." (Doc. 33-1 at 169-191, Program Statement 5566.06 at 14, §10(f); 28 C.F.R. §552.24(f). BOP policy directs that, "[u]se of four-point restraints beyond eight hours requires the supervision of qualified health personnel. Mental health and qualified health personnel may be asked for advice regarding the appropriate time for removal of the restraints."
Finally, BOP policy directs that "within 24 hours of placement in restraints, a review of the inmate's status will be conducted" by the Warden, Associate Warden, Captain, Unit Manager, Health Services Administrator, and Chief Psychologist "and a behavior management plan prepared." (Doc. 33-1 at 169-191, Program Statement 5566.06 at 15, §10(g); 28 C.F.R. §552.24(g).
In accordance with BOP policy, the extensive record in this action reveals the following with respect to restraint and medical checks:
Fifteen-minute restraint checks were completed in accordance with policy, starting at 1:15 p.m. on September 6, 2012, and continuing until 6:00 p.m. on September 8, 2012. (Doc. 33-1 at 14-21 Fifteen Minute Restraints Check Form). The record reveals that Plaintiff used foul language and made threatening remarks for the majority of the 128 fifteen minute checks.
The record reveals that consistent two-hour lieutenant checks were completed in accordance with BOP policy from 2:00 p.m. on September 6, 2012, until 2:00 a.m. on September 8, 2012. (Doc. 33-1 at 22-26, Two-hour Lieutenant Restraints Check Form). The two-hour lieutenant checks were delayed on September 8, 2012 until 6:15 a.m., when a recall of staff could be performed and a second Lieutenant could conduct the two-hour lieutenant checks due to the Morning Watch Operations Lieutenant having been seriously assaulted by an inmate. (Doc. 33-1 at 41-42, Memorandum explaining delay and Two-hour Lieutenant Restraints Check Form). During the delay of the two-hour lieutenant checks, the fifteen minutes checks were conducted accordingly. (Doc. 33-1 at 10-11, Fifteen Minute Restraints Check Form). The two-hour lieutenant checks were resumed in accordance with policy from 6:15 a.m. on September 8, 2012, until 6:00 p.m. on September 8, 2012. (Doc. 33-1 at 27, 42, Two-hour Lieutenant Restraints Check Form).
Additionally, in accordance with BOP policy, the record reveals that the use of the toilet was available during each two-hour check but not used. (Doc. 33-1 at 22-27, Two-Hour Lieutenant Restraints Check Form).
During the first twenty-four hours of two-hour lieutenant restraint checks, the record shows the following statements were made by Plaintiff: "I'll show you. I'll get you motherfuckers when you least expect it." (Doc. 33-1 at 22, Two-Hour Lieutenant Restraints Check Form); "That staff member had it coming. I'll do it again if I get a chance."
Defendant, Lieutenant Knapp, checked Plaintiff's restraints on September 6, 2012, at 2:00 p.m., and on September 7, 2012, at 8:00 a.m., 10:00 a.m., 12:00 p.m. and 2:00 p.m. (Doc. 33-1 at 22, 24-25, Two Hour Lieutenant Restraints Check Form). Plaintiff maintained a defiant and aggressive behavior during each of Lieutenant Knapp's restraint checks.
Defendant, Lieutenant Saylor, checked Plaintiff's restraints on September 8, 2012, at 6:15 a.m. and 8:00 a.m., both times Plaintiff continued to display aggressive behavior.
Bone's behavior remained "poor," "defiant," and "agitated," until September 8, 2013, during the 4:00 p.m. lieutenant restraint check, when he displayed signs of "beginning to "follow staff's verbal orders" and it was recommended he "be reevaluated on next check."
The medical records and video reveal that Emergency Medical Technician ("EMT") Matthew Barth was present when the restraints were initially placed on Plaintiff on September 6, 2010, and that he medically assessed him at this time. (Doc. 24, video (sealed document); Doc. 33-1 at 119-120, Health Services Clinical Encounter). On September 10, 2012, Defendant, Dr. Pigos co-signed EMT Barth's entry in Bone's medical record. (Doc. 33-1 at 121).
Once placed in restraints, the record reveals that Plaintiff was routinely checked by medical and psychology staff pursuant to BOP policy. (
On September 6, 2012, during the first restraint check at 4:00 p.m., staff loosened the martin chain around Bone's chest and noted the restraints moved freely to allow Bone to perform activities of daily living such as eating, drinking, and using the toilet. (Doc. 33-1 at 156, Health Services Clinical Encounter). During the 8:00 p.m. restraint check on September 6, 2012, the cuffs were found on Bone's forearms, moved to their proper position on the wrists and loosened slightly due to swelling. (Doc. 33-1 at 152, Health Services Clinical Encounter). Medical staff advised Plaintiff to keep the cuffs low on his wrists to prevent swelling and/or tissue damage, metabolic disturbance, coma, or death.
On September 7, 2012, at 12:01 a.m., Plaintiff's handcuffs were again found on his forearms and moved to the proper position on his wrists.
On September 8, 2012, during restraint checks at 6:15 a.m. and 8:00 a.m., the bilateral restraints were located on Plaintiffs' forearms and his right hand and wrist were "swollen secondary to improper restraint placement."
During various times over the course of Plaintiff's restraint checks, medical staff entered the following notes on the Health Services Restraint Form: "patient offered no medical complaints," "mild swelling to right hand," "cuffs moved to proper position on wrists," Inmate counseled to "keep the restraints at the wrists," "Martin chain loosened for comfort," "No signs of trauma or dehydration noted," "Good distal pulses in all Extrem . . .," "I/M's hands swollen secondary to I/M refusing to keep restraints at the wrist," "Restraints adjusted and moved to wrists," "the inmate has minor abrasions noted to the wrists," "Restraints again located on IM already open wounds on the forearms," "Attempted to place restraints back at the wrist but IM refused to allow stating they are more comfortable where they are," Restraints: "adequate/good/normal," Inmate use of toilet: "available," and Overall Assessment of Inmate Health: "appears healthy/appears well/fine," (Doc. 33-1 at 28-32, Health Services Restraint Review Form).
On September 8, 2012, Plaintiff was removed from restraints at 6:00 p.m.
On September 11, 2012, Bone was seen by Defendant, Dr. Pigos, for a chronic care appointment. (Doc. 33-1 at 158, Health Services Clinical Encounter). His only complaint at this visit was that "he has been hearing more voices for some time".
On September 7, 2012, at 1:00 p.m., a 24-hour restraint review was conducted in accordance with BOP policy. (Doc. 33-1 at 33-37, 24 Hour Restraint Review). The 24-hour restraint review revealed that, according to numerous fifteen-minute checks, Bone was "showing no indications of cooperating with staff or engaging in positive communication."
"Despite insistence on hearing voices, listening to voices, and responding to voices, this inmate is thinking rationally, purposefully, in an effort to avoid responsibility for his actions. There is little indication he has a decompensated mental status."
On September 8, 2012, at 4:30 p.m., a 48-hour restraint review was conducted in accordance with BOP policy. (Doc. 33-1 at 38-40, 48 Hour Restraint Review). The 48-hour restraint review revealed that, according to numerous fifteen-minute checks, Bone was "showing no indications of cooperating with staff or engaging in positive communication."
On October 24, 2012, Incident Report No. 2347876, issued by Officer Crawford was released for processing. (Doc. 33-1 at 62, Discipline Hearing Officer Report).
On October 25, 2012, Plaintiff appeared before the Unit Disciplinary Committee ("UDC"), who recommended that "to change negative behavior" the misconduct be heard by a Discipline Hearing Officer ("DHO"). (Doc. 33-1 at 67, Incident Report).
On December 3, 2012, Bone appeared before the DHO, where he was found guilty of the prohibited act of Assault. (Doc. 33-1 at 58, Appeal Response).
On December 19, 2012, Plaintiff filed an appeal from his misconduct hearing, arguing that he had been denied due process with respect to a choice of personal representative. (Doc. 33-1 at 57, Regional Administrative Remedy Appeal No. 717457-R1).
By Response dated January 30, 2013, the Regional Director partially granted Plaintiff's appeal as follows:
(Doc. 33-1 at 58, Appeal Response).
On April 3, 2013, the DHO conducted a rehearing regarding the charge of assault against Bone. (Doc. 33-1 at 60-65, Discipline Hearing Officer Report on Rehearing). As a result of the rehearing the following Administrative Note was added to the DHO Report:
(Doc. 33-1 at 62, Discipline Hearing Officer Report on Rehearing).
At the conclusion of the hearing, the DHO determined Bone committed the prohibited act of Assaulting Any Person, in violation of Code 224.
As the United States Court of Appeals for the Third Circuit has observed:
The Eighth Amendment protects against infliction of "cruel and unusual punishment." However, "not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny."
An Eighth Amendment excessive force claim entails a showing of some subjective intent to injure. In an excessive force case, where "prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in
Thus, the keystone to analysis of an Eighth Amendment excessive force claim often entails issues of motivation-whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.
When considering such claims, the reasonableness of a particular use of force is often dependent upon factual context and must be "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.", 490 U.S. 386, 396-7 (1989). Moreover, in the context of prison excessive force claims, in determining "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm,"
Further, in the specific factual context of excessive force claims based upon allegations relating to a prisoner's handcuffing, courts have acknowledged that, in certain instances, government officials are entitled to qualified immunity as a matter of law.
In their motion for summary judgment, the Defendants have provided ample evidence to demonstrate that the ambulatory restraints applied to Bone were applied in a good-faith effort to restore discipline. Exhibits document Bone's history of disciplinary infractions at the prison for violent behavior, and the incident that triggered the use of restraints in the instant action involved misconduct that threatened staff safety. It is clear that the temporary restraints were necessary to limit the threat to staff and to allow Bone to regain his composure. The Defendants also submitted evidence of the 15—minute and 2—hour checks that were regularly conducted to examine and adjust the fit of the restraints, and to evaluate Bone's level of self-control. Furthermore, the Defendants have demonstrated that the use of restraints was narrowly tailored; once Bone was finally calm and the threat against staff had subsided, the restraints were removed. Thus, the Defendants successfully made their showing.
The burden then shifted to Bone to produce sufficient evidence from which a reasonable jury could find that the restraints were applied not to restore discipline, but rather to cause him pain.
Beyond his claims that he was subjected to excessive force by staff, Bone alleges that prison officials were deliberately indifferent towards him in violation of the Eighth Amendment. Specifically, Bone alleges that Defendant Bastian failed to contact the mental health psychologist once Bone made claims of hearing voices in his head and further exclaimed that those voices were telling him to kill himself. (Doc. 1, complaint at 2, 6-7). Bone claims that instead of contacting the mental health psychologist, he was placed in restraints giving rise to his lawsuit.
Bone alleges that Defendant Knapp was deliberately indifferent to him by allegedly denying him water, food and use of the bathroom as well as failing to loosen restraints.
Under the Eighth Amendment, courts recognize that prison officials may not be deliberately indifference to harms or injuries suffered by inmates. In
As explained in
These principles apply with particular force to Eighth Amendment claims premised upon inadequate medical care. In the medical context, a constitutional violation under the Eighth Amendment occurs only when officials are deliberately indifferent to an inmate's serious medical needs.
Deliberate indifference to a serious medical need involves the "unnecessary and wanton infliction of pain."
However, it is also clear that the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice is not a constitutional violation.
With respect to Defendant, Officer Bastian, Plaintiff alleges that he told Officer Bastian that he was hearing voices that were telling him to kill himself and requested Officer Bastian call Psychology, and instead of calling for mental health for Plaintiff, Bastian returned with Defendant Crawford, who then set Bone up with the false charge of assault.
Officer Bastian submits his own affidavit, under penalty of perjury, in which he states that while he was the G-Block 3rd floor #1 officer on that date and remembers when the incident happened with inmate Bone in the third floor shower, he was in the office at the time of the incident, and did not witness anything, and does not have any additional information concerning Plaintiff's case. (
However, even taking Plaintiff's allegations as true, the record before the Court does not reveal that Plaintiff had a sufficiently serious mental health condition and that Defendant Bastian was deliberately indifferent to such condition.
Likewise, Bone's allegations of deliberate indifference by Defendant Knapp for denying Plaintiff water, food, use of the bathroom, and failure to loosen restraints do not support an Eighth Amendment violation. The record reveals that Defendant Knapp conducted two-hour lieutenant checks on Plaintiff, while in ambulatory restraints, on September 6, 2012, at 2:00 p.m., on September 7, 2012, at 8:00 a.m., and 10:00 a.m., 12:00 p.m. and 2:00 p.m. During each of these two-hour lieutenant restraint checks, it is noted that Bone maintained defiant and aggressive behavior. The record further reveals that at the times that Defendant Knapp completed the two-hour lieutenant checks, the restraint checks of health personnel were being conducted contemporaneously with these times. Notations from the health personnel checks state that the use of toilet was available to Bone; however, the two-hour lieutenant checks reveal that Bone did not use the available toilet. In addition, the health personnel checks confirm that Bone was either provided food or liquid for consumption or his consumption was found to be adequate. Further, on September 7, 2012 at 7:45 a.m., health personnel arrived to perform restraint checks and noted that "inmate having breakfast when I arrived." Plaintiff offers nothing to refute this. Thus, the record clearly demonstrates that Defendant Knapp did not deprive Plaintiff of any life necessity, in violation of the Eighth Amendment.
Finally, with respect to Defendant, Dr. Pigos, Bone claims that Dr. Pigos was deliberately indifferent by not providing medical care to his wounds on his forearms. Once again, the record belies such allegation. Record evidence demonstrates that Bone's restraints were routinely checked by medical staff to ensure proper fitting. Following the various checks, medical staff noted the following: "patient offered no medical complaints," "mild swelling to right hand," "cuffs moved to proper position on wrists," Inmate counseled to "keep the restraints at the wrists," "Martin chain loosened for comfort," "No signs of trauma or dehydration noted," "Good distal pulses in all Extrem . . .," "I/M's hands swollen secondary to I/M refusing to keep restraints at the wrist," "Restraints adjusted and moved to wrists," "the inmate has minor abrasions noted to the wrists," "Restraints again located on IM already open wounds on the forearms," "Attempted to place restraints back at the wrist but IM refused to allow stating they are more comfortable where they are," Restraints: "adequate/good/normal," Inmate use of toilet: "available," and Overall Assessment of Inmate Health: "appears healthy/appears well/fine."
Moreover, the record reveals that on at least eight separate medical restraint checks Bone was instructed to keep the restraints at his wrists. Health checks revealed mild swelling at the hands and scabbed wounds on the forearms were addressed and afterwards Bone was counseled on the proper placement of the restraints for his safety and overall assessment of health. Although Bone was repeatedly counseled on the proper placement of the restraints in order to avoid swelling or injury, he continued to manipulate the restraints by moving them to his forearms, resulting in one health personnel noting "unable to perform wound care, inmate uncooperative."
Following his release from restraints, Plaintiff was seen on one occasion by Dr. Pigos. On September 11, 2012, Plaintiff was examined by Dr. Pigos for a chronic care appointment. His only complaint was the he was hearing voices. At not time did he complain of injury to his arms or request medical care for such.
Thus, the Plaintiff has failed to present evidence from which a reasonable jury could conclude that the Defendant Pigos possessed the culpable mental state necessary for Eighth Amendment liability to attach.
In order to establish a civil rights claim Bone must show the deprivation of a right secured by the United States Constitution or the laws of the United States. Satisfying these elements alone, however, does not guarantee that bone is entitled to recover damages from these public officials. Government officials performing "discretionary functions," are insulated from suit if their conduct did not violate a "clearly established statutory or constitutional right[] of which a reasonable person would have known."
"Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is `a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact'."
Determinations regarding qualified immunity, and its application in a given case, require a court to undertake two distinct inquiries. First, the court must evaluate whether the defendant violated a constitutional right.
In order to find that a right is clearly established, "the right allegedly violated must be defined at the appropriate level of specificity."
The court is no longer required to conduct these two inquiries sequentially,
In the specific factual context of excessive force claims based upon allegations relating to a prisoner's handcuffing, courts have acknowledged that, in certain instances, summary judgment is entirely appropriate.
Applying these benchmarks, the Court finds that the Defendants are entitled to qualified immunity in this case. The record does not evince anything that would have alerted the Defendants that their actions violated "clearly established statutory or constitutional right[ ] of which a reasonable person would have known."
The sanctions levied against Bone during his disciplinary hearing, were all imposed as a result of prison misconduct. To the extent that Bone alleges that Defendants Crawford and Saylor fabricated the incident reports issued on September 6, 2012, "mere allegations of falsified [incident] reports, without more, are not enough to state a due process claim."
Moreover, the Court finds that any Fifth Amendment due process claim regarding his disciplinary rehearing is barred under
Based upon the undisputed facts of record, Defendants are entitled to summary judgment with respect to Plaintiff's claims of excessive force, deliberate indifference and challenges to his misconduct rehearing. In the alternative, Defendant's request for qualified immunity will be granted with respect to Plaintiff's claim of excessive use of force. Finally, Defendant, "SORT Team Members" will be dismissed pursuant to Rule 4(m) for Plaintiff's failure to properly identify these Defendants and effectuate service within 120 days of the filing of the complaint.
Steven M. Hunter, Lewisburg, PA, pro se.
A complaint filed in forma pauperis may be dismissed if it is determined that the action is frivolous, malicious, fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). In deciding whether the complaint fails to state a claim on which relief may be granted, the court employs the standard used to analyze motions to dismiss under Fed.R.Civ.P. 12(b)(6). The court must accept as true the factual allegations in the complaint and construe any inferences to be drawn from the allegations in the plaintiff's favor. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), giving the defendant "fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)). Although detailed factual allegations are not required, Twombly, 550 U.S. at 93, 127 S.Ct. at 2200, the complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. at 1974. "[M]ore than labels and conclusions" are required. Id. at 555, 127 S.Ct. at 1964-65.
Pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson, supra, 551 U.S. at 94, 127 S.Ct. at 2200. Pro se litigants are to be granted leave to file a curative amended complaint "even when a plaintiff does not seek leave to amend," unless such an amendment would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004).
Plaintiff claims that Warden Bledsoe; the Associate Warden of Programs; the prison's Administrative Remedy Coordinator; the Regional Director; Unit Manager Brewer; Counselor Lizardi; and Case Manager Zearski conspired to deny him access to the prison's administrative remedy process. (Doc. 19, CM/ECF p. 9).
Plaintiff alleges that Warden Bledsoe; the Associate Warden of Programs; the Associate Warden of Operations; and the Associate Warden of Custody have been deliberately indifferent to his safety by ignoring his request for single-cell status. In support, Plaintiff avers he has: (1) a history of not having been able to share a cell with any of about twenty-four other inmates since being in the SMU; (2) been assaulted by at least three cellmates; and (3) an extensive history of an antisocial personality that causes him to act out when celling with another inmate. (Doc. 19, CM/ECF pp. 10-11).
Plaintiff has no constitutional right to a single cell, Keeling v. Damiter, No. 09-147, 2010 WL 678091, at *6 (M.D.Pa. Feb. 24, 2010), and neither past assaults upon him by cellmates nor his antisocial personality are valid bases for this court to require prison officials to give him single-cell status. That judgment should be left to prison administrators, who are in the best position to decide his housing status and whether he can live with any particular inmate. See Rauser v. Horn, 241 F.3d 330, 334 (3d Cir.2001) ("the task of prison administration is difficult, and . . . courts should afford deference to decisions made by prison officials, who possess the necessary expertise"); DeFranco v. Wolfe, 2010 WL 2762968, at *6 (3d Cir.2010) (nonprecedential) (quoting Rauser). Thus, Plaintiff's claim for single-cell status will be dismissed, and without leave to amend.
Plaintiff alleges that defendants Lt. Galletia and CO Kulago on several occasions made racial remarks to him, or other remarks about him, that sometimes included threats.
Verbal abuse or harassment are not civil-rights violations, Mimms v. UNICOR, 2010 WL 2747470, at *2 (3d Cir.2010) (per curiam) (nonprecedential), even harassment that includes threats of violence. See Herder v. Biesh, No. 09-2470, 2010 WL 2766611, at *4 (M.D.Pa. July 13, 2010) (Caldwell, J.); MacLean v. Secor, 876 F.Supp. 695, 698-99 (E.D.Pa.1995) (collecting cases); Wright v. O'Hara, 2002 WL 1870479 at *3 (E.D.Pa.). Nor is the use of racial slurs, as offensive as they are. Simmons v. Mallick, No. 10-739, 2010 WL 2079865, at *7-8 (M.D.Pa. April 21, 2010) (magistrate judge report), approved, Simmons v. Mallick, 2010 WL 2079857 (M.D.Pa. May 21, 2010) (Caldwell, J.). Hence Plaintiff's claims based on alleged verbal harassment will be dismissed, without leave to amend.
A false misconduct charge does not itself qualify as an Eighth Amendment violation. Booth v. Pence, 354 F.Supp.2d 553, 558-59 (E.D.Pa.2005) (citing Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir.1997)). Similarly, no due process claim is stated when a prisoner alleges that misconduct charges were fabricated. Smith v. Mensinuer, 293 F.3d 641, 653-54 (3d Cir.2002) (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). Accordingly, the three claims based on the allegedly false incident reports of July 17, 2009, and August 8, 2009, will be dismissed without leave to amend.
As noted above, a false misconduct report is not in itself a civil-rights violation, but if it was issued in retaliation for an inmate's exercise of a constitutional right, it is actionable. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001). To prevail on a retaliation claim, a prisoner must show that: (1) he engaged in constitutionally protected conduct; (2) he suffered some "adverse action" by prison officials; and (3) there is a causal link between the exercise of the right and the adverse action. Id. at 333-34.
Plaintiff avers that three false incident reports were issued for retaliatory reasons. First, on December 7, 2009, defendant Officer Hummer issued a false misconduct "in retaliation for plaintiff['s] protest[ing]" that he wanted to "be move[d] to another cell to avoid a cell fight with plaintiff['s] cellmate . . . and/or from plaintiff['s] being further assaulted by his cellmate. . ." (Doc. 19, CM/ECF p. 14). Second, on March 10, 2010, defendant Anderson wrote a false incident report to retaliate against Plaintiff's "threat [ ] to file an administrative remedy on Officer Anderson." (Id.). Third, on April 14, 2010, defendant Lt. Johnson issued him a false incident report in retaliation for "plaintiff['s] refusal to cell with a known gang-related violent inmate in order to justify placing plaintiff in ambulatory restraints." (Id., p. 15).
None of these three reports are actionable as a retaliation claim because none of them involved Plaintiff's exercise of a constitutional right. In the December 2009 and April 2010 claims, the allegedly retaliatory conduct stemmed from Plaintiff's stating that he wanted a different cellmate. However, as noted, Plaintiff has no constitutional right to pick his cellmate or to a single cell.
The March 2010 claim is closer to the mark because Plaintiff alleges that Officer Anderson retaliated against him because Plaintiff threatened to file a grievance against him. The filing of a grievance by a prisoner is protected by the First Amendment. Kelly v. York County Prison, 340 F. App'x 59, 61 (3d Cir.2009) (per curiam) (nonprecedential); Baker v. Williamson, No. 07-2220, 2010 WL 1816656, at *5 (M.D.Pa. May 5, 2010) (Caldwell, J.). The difficulty here for Plaintiff is that he only threatened to file a grievance; he did not actually file one. Since Plaintiff's conduct did not actually involve the exercise of a constitutional right, he fails to satisfy the first element of a retaliation claim, and the March 2010 retaliation claim will be dismissed, without leave to amend.
Plaintiff claims defendant Deputy Captain Snider, motivated by racism in part, responded to administrative remedy complaints "without a prompt investigation into [the] complaints." (Doc. 19, CM/ECF p. 16). These allegations fail to state a claim for two reasons. First, Plaintiff has failed to allege sufficient facts. He must allege the administrative remedies that defendant Snider handled in a discriminatory manner, the content of the grievances, and any facts supporting the allegation of racial bias. Second, Plaintiff must allege any injury he may have suffered from how Snider handled the grievances. We will grant him leave to amend this claim.
Plaintiff avers that Unit Manager Brewer, Counselor Shuck, Counselor Lizzardi, the Assistant Warden of Programs, and Warden Bledsoe refuse to provide him with postage stamps and ordered him "to repay" for stamps if they have been provided to him, even though he is indigent. (Doc. 19, CM/ECF p. 16). Plaintiff avers that Warden Bledsoe, the Assistant Warden of Programs, the Education Supervisor, Unit Manager Brewer, and Counselor Lizzardi "refuse to provide Plaintiff free (no limited amount) of . . . copies of legal cases and related papers, including this action despite Plaintiff's being indigent." (Id., pp. 16-17).
An inmate may be indigent and proceeding pro se but that does not entitle him to litigate his case without costs or at the expense of the BOP. In Tabron v. Grace, 6 F.3d 147, 159 (3d Cir.1993), the Court stated that "[t]here is no provision in [28 U.S.C. § 1915] for the payment by the government of the cost of deposition transcripts, or any other litigation expenses, and no other statute authorizes courts to commit federal monies for payment of the necessary expenses in a civil suit brought by an indigent litigant." Notably, Plaintiff does not allege that the BOP is not allowing him to anticipate funds in his prison account to cover his postage or court-related copying expenses, but rather that they are making him pay for them at some later point when there are funds in his prison account. This claim will be dismissed, and without leave to amend.
We conclude that these claims should survive an initial screening of the complaint.
Plaintiff alleges the following assaults. First, since November 13, 2007, several prison officials have caused Plaintiff to be assaulted by at least three cellmates. (Doc. 19, CM/ECF p. 8). Second, on June 19, 2009, Lt. Galletia assaulted Plaintiff while he was in ambulatory restraints by spitting on him. (Id., p. 11). Third, on August 8, 2009, Lt. Galletia used excessive force when he used gas and shot-gun pepper spray on Plaintiff when he refused to allow his cellmate to have his hand restraints removed, with the intent to force Galletia to put Plaintiff in another cell. (Id., p. 12). Fourth, on November 13, 2009, Plaintiff was assaulted by a cellmate whom Lt. Galletia had placed with Plaintiff despite Plaintiff's request not to be placed with this non-compatible inmate. (Id., p. 13).
The first assault claim is deficient because it does not allege the prison officials involved, the facts supporting the averment that they caused Plaintiff to be assaulted, when the assaults occurred, and the names of the cellmates who assaulted him. The third claim is deficient in failing to allege facts that show that Lt. Galletia used excessive force, especially since Plaintiff admits he caused a confrontation by refusing to allow his cellmate to have his restraints removed. The fourth claim is also deficient in failing to allege facts showing that Lt. Gallatia knew or should have known that the cellmate was "non-compatible" and that he would assault Plaintiff, as well as the name of the cellmate. Plaintiff will be granted leave to amend these claims.
Plaintiff's second claim is also deficient but cannot be cured by amendment. An assault by spitting is not enough for an Eighth Amendment claim. See McCullough v. Miller, No. 06-514, 2008 WL 4361254, at *7 (W.D.Pa. Sept.24, 2008) (collecting cases), aff'd, 330 F. App'x 330 (3d Cir.2009) (per curiam) (nonprecedential); Young v. Medden, No. 03-5432, 2006 WL 456274, at *21-22 (E.D.Pa. Feb.23, 2006). It is immaterial that Plaintiff was in ambulatory restraints at the time. This claim will be dismissed, and without leave to amend.
Inmates have no constitutional right to confinement in any particular prison. Mimms v. UNICOR, 2010 WL 2747470, at *2 (3d Cir.2010) (per curiam) (nonprecedential). However, as noted above, inmates do have an Eighth Amendment right to safety. Nonetheless, these allegations fail to state a claim because they are conclusory. Plaintiff will be granted leave to amend this claim by alleging the following: (1) the names of the prison officials he needs protection from; and (2) a description of the conduct of these officials (including time and place) that constituted a threat to his safety.
The following claims will be dismissed without leave to amend: (1) the claims for denial of access to the administrative remedy process; (2) the claim for single-cell status; (3) the claim based on verbal harassment by the guards; (4) the three claims based on false incident reports of July 17, 2009, and August 8, 2009; (5) the March 2010 retaliation claim based on a allegedly false incident report issued by defendant Anderson: (6) the claim for denial of unlimited free postage and photocopies; and (7) the claim that Lt. Gallatia assaulted Plaintiff on June 19, 2009, by spitting on him.
The following claims will be dismissed but with leave to amend to make the necessary allegations, as discussed in the accompanying memorandum: (1) the December 2009 and April 2010 retaliation claims; (2) the claim that Deputy Captain Snider responded to administrative remedy complaints in a racist manner; (3) the claim that since November 13, 2007, several prison officials have caused Plaintiff to be assaulted by at least three cellmates; that on August 8, 2009, Lt. Galletia used excessive force on Plaintiff; and that on November 13, 2009, Plaintiff was assaulted by a cellmate whom Lt. Galletia had placed with Plaintiff; and (4) the claim that Plaintiff should have been transferred for safety reasons.
Plaintiff will be granted twenty-one days to file an amended complaint. If Plaintiff fails to do so, this action will proceed only on the following claim: that Warden Bledsoe and unknown defendants unconstitutionally placed Plaintiff in ambulatory restraints on several occasions.
Plaintiff is advised that the "amended complaint must be complete in all respects. It must be a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed." Young v. Keohane, 809 F.Supp. 1185, 1198 (M.D.Pa.1992). Thus, he must include in his amended complaint his ambulatory restraint claims even though we found them sufficient for an initial screening. Further, because Plaintiff's cursive handwriting is illegible, if Plaintiff handwrites the amended complaint, Plaintiff must handwrite it in a printed fashion rather than use a cursive style. If Plaintiff uses a cursive style, the amended complaint will be dismissed.
AND NOW, this 9th day of August, 2010, upon review of the Complaint (doc. 19) under 28 U.S.C. § 1915(e)(2)(B)(ii), it is ordered that:
1. The following claims are dismissed without leave to amend: (a) the claims for denial of access to the administrative remedy process; (b) the claim for single-cell status; (c) the claim based on verbal harassment by the guards; (d) claims based on false incident reports; (e) the March 2010 retaliation claim based on a allegedly false incident report issued by defendant Anderson; (f) the claim for denial of unlimited free postage and photocopies; and (g) the claim that Lt. Gallatia assaulted Plaintiff on June 19, 2009, by spitting on him.
2. The following claims are dismissed but with leave to amend to make the necessary allegations as discussed in the accompanying memorandum: (a) the December 2009 and April 2010 retaliation claims; (b) the claim that Deputy Captain Snider responded to administrative remedy complaints in a racist manner; (c) the claims that since November 13, 2007, several prison officials have caused Plaintiff to be assaulted by at least three cellmates; that on August 8, 2009, Lt. Galletia used excessive force on Plaintiff; and that on November 13, 2009, Plaintiff was assaulted by a cellmate whom Lt. Galletia had placed with Plaintiff; and (4) the claim that Plaintiff should have been transferred for safety reasons.
3. Plaintiff is granted twenty-one days to file an amended complaint. If Plaintiff fails to do so, this action will only proceed on the claim against Warden Bledsoe and unknown defendants that Plaintiff was unconstitutionally placed in ambulatory restraints on four occasions.
4. The amended complaint must be complete in all respects and must be a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed.
5. If Plaintiff handwrites the amended complaint, Plaintiff must handwrite it in a printed fashion rather than use a cursive style. If Plaintiff uses a cursive style, the amended complaint will be dismissed.
Ray Lee Holley, Jr., Pound, VA, pro se.
Susan Foster Barr, Office of the Attorney General, Richmond, VA, for Defendants.
Plaintiff Ray Lee Holley, Jr., an inmate in the segregation unit at Red Onion State Prison who is proceeding pro se, brings this civil rights complaint, pursuant to 42 U.S.C. § 1983. He alleges three groups of claims concerning:
(a) the confiscation of religious materials necessary for his practice of his professed religion, the Nation of Gods and Earths (also known as the Five Percent Nation of Islam or Five Percenters),
(b) denial of his request to receive the Common Fare Diet (CFD) in keeping with his religious beliefs, in violation of the Constitution, RLUIPA, and the Virginia Constitution; and
(c) his being held in ambulatory restraints for 48 hours (from September 29 to October 1, 2007), in violation of the Eighth Amendment, the Virginia Constitution, and state law.
Defendants moved for summary judgment, and plaintiff responded. The court found that Holley had alleged facts which, liberally construed, stated constitutional and RLUIPA claims. (Mem.Op. Oct. 1, 2009.) Therefore, the court denied the motion on the ground of qualified immunity and referred the matter to the magistrate judge. After amendment of the complaint and completion of discovery, the magistrate judge issued her report, recommending that defendants' motions for summary judgment be granted in part and denied in part.
In a report pursuant to § 636(b), the magistrate judge makes only recommendations to the court. The recommendations have no presumptive weight, and responsibility for making a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo review of those portions of the report to which specific objection is made, and may "accept, reject, or modify, in whole or in part, the findings or recommendations" of the magistrate judge. 28 U.S.C. § 636(b)(1). In the absence of specific objections to the report, the court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir.1983).
The magistrate judge recommends granting defendants' motion for summary judgment as to any claim that the Virginia Department of Corrections' (VDOC) designation of the Five Percenters as an STG violates Holley's right to free exercise of his religious beliefs under the First Amendment. (Report 7-9, 27.) Although his complaint raises arguments that Five Percenters are not a security threat, Holley does not object to this portion of the report. Moreover, he now expressly asserts that he "does not challenge the VDOC's security threat group classification" of the Five Percenters. (Dkt. No. 115 at 2.) Accordingly, the court will adopt this portion of the report without further discussion and will grant defendants' motion for summary judgment as to any aspect of Holley's complaint asserting that the VDOC's classification of the Five Percenters as an STG is unconstitutional or otherwise unlawful. Id. See also In re Long Term Admin. Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 468 (4th Cir.1999) (upholding South Carolina prison policy designating Five Percenters as an STG and requiring that STG members remain in long-term segregated confinement).
The magistrate judge recommends that defendants' motion for summary judgment be granted as to Holley's claim that confiscation of his religious materials violated his rights under the First Amendment. (Report 9-10.) She assumes for purposes of the report, without making a factual finding, that the Five Percenters are a religious group entitled to First Amendment protections.
Holley objects to this recommendation. He argues that a genuine issue of material fact remains in dispute as to whether Five Percenters literature itself poses a threat to prison order, whether a blanket ban against inmates' possessing such literature, regardless of content, furthers prison security, and whether defendants considered the religious nature of his materials before confiscating them. Holley states that the official literature of the Five Percenters as a whole is called "The 120°," also known as "The Book of Life." According to plaintiff, this publication does not advocate violence and is as essential to the exercise of his faith as the Koran is to the Islamic faith, the Bible to the Christian faith, and the Torah to the Jewish faith. Among his exhibits, he offers replicas of the Five Percenter items taken from his cell and confiscated as gang-related.
Defendants' evidence indicates that the VDOC has established a zero tolerance policy for inappropriate or criminal behavior committed by groups of inmates meeting the statutory definition of a criminal street gang:
Va. Code Ann. § 18.2-46.1. Such groups are classified as STGs, and their members are subject to severe restrictions of property or activity related to gang membership or involvement. Specifically, under the VDOC's policy regarding STGs,
As stated, Holley expressly does not challenge the VDOC's classification of Five Percenters as an STG. This determination reflects officials' finding that the Five Percenters as a group present the same threats to prison security and order as do other criminal gangs. Holley also does not deny that officers confiscated his "religious" materials only because they were identified as Five Percenters material and not because of the content of the materials. In so doing, in keeping with the first Turner factor, officials furthered a neutral and legitimate security interest in eliminating all indicators of STG association in order to limit gang influence among the prison population at Red Onion State Prison.
In consideration of the second Turner factor, it is true that STG status prevents Holley from practicing some aspects of his religious beliefs that he might be free to practice outside the prison. In his unsworn response to defendants' motion, Holley summarizes those beliefs as a mandate to obtain knowledge, wisdom, and understanding about the "God" within himself by reading and contemplating Five Percenter literature and a duty to educate and enlighten others about the Five Percenter beliefs. Because the Five Percenters are classified as an STG, however, Holley asserts that he is prohibited from possessing any distinctive Five Percenter literature and from meeting or corresponding with other members of the Five Percenters, including religious leaders of the group.
Holley believes prison officials should ban only Five Percenter material that specifically advocates violence. Such an accommodation, however, would frustrate the goal of the zero tolerance policy to eliminate all indicators of gang affiliation, and reduce the effectiveness of the policy in combating the dangers that the STG poses to other inmates and staff See In re Five Percenters, 174 F.3d at 470 (noting that because increased freedom for STG members could come "only with the cost of significantly less liberty and safely for everyone else, guards and other prisoners alike," the court properly deferred to judgment of prison officials that Five Percenters should be segregated from general population) (quoting Turner, 482 U.S. at 92-93). Thus, the third and fourth Turner factors weigh heavily in favor of prison officials.
The magistrate judge finds genuine issues of material fact in dispute as to whether the STG policy's ban against Holley's possession of Five Percenter literature imposes a substantial burden on his religious practice and as to whether banning possession of Five Percenter material, regardless of whether the content itself poses a security threat, is the least restrictive means of furthering a compelling governmental interest as required for a RLUIPA claim under 42 U.S.C. § 2000cc(a)(1). (Report 13-14.) Therefore, she recommends denying summary judgment as to Holley's claim that the confiscation of his religious literature violates his rights under RLUIPA. Neither party objects to this recommendation or to the findings and conclusions on which it is based.
The magistrate judge's findings, conclusions, and recommendation regarding the RLUIPA claim, however, were rendered prior to receipt of Holley's concession that he is not challenging the VDOC's classification of the Five Percenters as an STG. Therefore, the court finds it necessary to analyze plaintiff's claims under RLUIPA, de novo.
RLUIPA prohibits governments from taking actions that impose a "substantial burden on the religious exercise of a person residing in or confined to an institution," unless the government demonstrates that imposition of that burden furthers "a compelling governmental interest" by "the least restrictive means." 42 U.S.C.A. § 2000cc-1(a)(1)-(2). Its protections apply to programs or activities that receive federal monies, such as the VDOC.
Holley's RLUIPA argument is that banning all Five Percenter publications does not further the prison's interest by the least restrictive means, because the content of the publications does not pose a security threat. This argument ignores the fact that the documents seized from Holley are themselves closely identified with the Five Percenters group, just as the color-coded clothing worn by well-known city gangs, like the Bloods and the Crips, indicates membership in, or support for, those gangs. Holley's mere possession of the confiscated items, regardless of their written content, identified him as an STG member or supporter, thereby furthering the presence and influence of the STG itself Allowing him to designate a friend or family member to receive the confiscated materials, as Holley requests, would deprive officials of the opportunity to use the materials in further investigation of Holley and other Five Percenter inmates and would leave open a risk that the literature would be returned to him surreptitiously. The court agrees that permitting possession of such distinctive Five Percenter literature would undermine the effectiveness of the STG policy in reaching its goal to eliminate all indicia of gang affiliation as a means of eliminating the gangs' power and the dangers that accompany gang activity in prison. Holley retains the ability to practice other aspects of his beliefs, as discussed herein. Therefore, the court finds no genuine issue of material fact in dispute and concludes that defendants are entitled to summary judgment as a matter of law as to Holley's claim that confiscation of his religious materials violated RLUIPA.
Holley does not object to the magistrate judge's recommendation that defendants' motion for summary judgment be granted as to his claims that confiscation of his Five Percenter literature violated the Equal Protection Clause or the Due Process Clause. (Report 14-16.) Therefore, the court will adopt this portion of the report and grant summary judgment for defendants as to these claims.
Defendants are also entitled to summary judgment as to Holley's related state law claim that the unlawful confiscation of his religious literature constituted conversion of his property.
In Paragraph 26 of a numbered list entitled "Proposed Findings of Fact and Conclusions of Law" at the end of the report, the magistrate judge states that defendants' motion "should be denied insofar as Holley claims the denial of the CFD violated his constitutional rights or his rights under the RLUIPA." (Report 29.) (emphasis added). Defendants object to this recommendation, arguing that it is inconsistent with the magistrate judge's analysis and findings elsewhere in the report, indicating that defendants' motion should be granted as to Holley's claims under federal law regarding the denial of the CFD. (See Report 24-26, 29 ¶ 25.) In these earlier sections of the report, the magistrate judge finds that Holley had failed to present facts to prison officials or the court in support of his allegation that denial of the CFD meals imposed a substantial burden on his religious beliefs, an essential element of a claim under the Free Exercise Clause or RLUIPA. (Id.) Defendants ask the court to reject No. 26 of the listed findings on page 29 of the report, to adopt the earlier findings, and grant summary judgment as to the CFD claims. After de novo review, the court concludes that defendants' objection must be sustained.
Inmates have a constitutional right and a statutory right under RLUIPA to receive a nutritious diet in keeping with their sincere religious beliefs. Lovelace v. Lee, 472 F.3d 174, 198-99 (4th Cir.2006); Ross v. Blackledge, 477 F.2d 616, 618-19 (4th Cir.1973). To succeed on a constitutional or RLUIPA claim in this context, however, an inmate must first demonstrate that the diet choices already provided to him by the prison substantially burden his religious practice.
The initial hearing officer and the warden both disapproved Holley's CFD request, stating as a rationale: "God of Earth is not a religion." (Id. at 72.) Holley appealed, and the Central Classification Services (CCS) representative also disapproved his CFD request, stating that CCS personnel had concluded from Holley's submissions that his request was not "religiously motivated," based on "[flack of adequate documentation that the religion to which you claim membership or interest has a requirement for the Common Fare Diet. Further, this religion is not recognized by the DOC."
Holley reapplied to participate in the CFD program in August 2008.
(Id. at 78.)0
The record thus reflects that when Holley first applied for participation in the CFD in January 2008, his documentation did not include any literature on the Nation of Gods and Earths (Five Percenters) which indicated that adherents of that belief system should eat foods consistent with the CFD menu. Holley's application mentioned documentation from related religious groups, but did not explain the relationship between the dietary laws of these other groups and those of his stated religious preference. He also failed to explain in his application why he could not meet his religious dietary needs by continuing to receive the VDOC vegetarian menu. As he thus failed to demonstrate to VDOC decision makers that denial of the CFD substantially burdened his ability to practice his stated religion, neither the First Amendment nor RLUIPA required defendants to accommodate his dietary preference.
Holley also asserts that denial of his CFD request violated his rights under Article 1, §§ 11 and 16 of the Virginia Constitution—the equal protection and free exercise provisions of this document. Defendants filed a supplemental motion for summary judgment as to these claims. Holley received notification of this motion as required under Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975) and has responded. He argues that defendants waived their defense by failing to address the state constitutional claims in their earlier motion. The court finds, however, that granting leave for defendants to pursue their supplemental motion furthers the interests of justice and judicial economy. Inasmuch as the court has determined that Holley has not established that denial of his initial CFD request violated his rights under the Equal Protection Clause or the Free Exercise Clause of the United States Constitution, he cannot succeed on his claim that denial of the diet violated his rights under the analogous provisions of the Virginia Constitution. Rowley. 629 S.E.2d at 191 n. 2 (finding that Virginia Constitution provides protections "co-extensive with those in the United States Constitution"). Therefore, the court will grant defendants' supplemental motion for summary judgment as to Holley's state constitutional claims regarding his religious diet.
Holley makes specific objections (1) to the magistrate judge's findings that he does not show sufficient injury to sustain Eighth Amendment claims for monetary damages for unconstitutional living conditions or excessive force related to defendants' use of ambulatory restraints,
On September 29, 2007, at approximately 10:30 a.m., a prison official reported that Holley had been observed smoking on the recreation yard.
Lt. McCoy and a cell extraction team gathered at 12:55 p.m. in front of Holley's cell. Lt. McCoy ordered Holley to back up to the tray slot so that handcuffs could be applied to his wrists. Holley uncovered his window and backed up to the tray slot as ordered. Officers escorted him into the vestibule, where they ordered him to remove his clothing and footwear and gave him a safety smock to put on. He did so. Then, he knelt as ordered to allow the officers to apply leg irons to his ankles. Meanwhile, other officers cleaned and sanitized Holley's cell and removed his property, including his mattress, as required for strip cell status.
VDOC regulations state that ambulatory restraints are used to control assaultive, disruptive, or unmanageable inmates in situations where there is danger for them to injure themselves or others. The restraints are not to be used as punishment and are to be removed as soon as the inmate's disruptive behavior has ceased and officers determine that he is no longer a danger to himself or others. In any event, such restraints must be removed after 48 hours absent approval from the regional director.
An inmate in ambulatory restraints has his hands cuffed in front, double locked, with a black box covering the center keyhole portion of the cuffs. He also wears leg irons, with a security waist chain running through the black box on the handcuffs and down to the leg irons. The medical unit must advise security officers whether any medical reason prevents use of ambulatory restraints, and a nurse must examine the inmate to ensure that the restraints are appropriately applied and that two fingers can be placed under each cuff. Defendants maintain that an inmate in ambulatory restraints can stand completely upright, move around his cell, use the bathroom, wash himself, and eat, but cannot lift his arms above his head, swing his arms, or kick his feet. Holley asserts, however, that the ambulatory restraints prevented him from standing upright, which "caused tremendous back pain and muscle stiffness/soreness from days of having to lean forward to move around." (Dkt. No. 57 at 54.) He also asserts that the black box over the handcuffs "significantly restricts movement of the arms and wrist and causes severe muscle stiffness." (Id.)
After officers placed Holley in ambulatory restraints on September 29, 2007, a nurse checked the restraints. She was able to place two fingers under each cuff and noted that Holley did not voice any complaints to her. While Holley was in ambulatory restraints, staff checked on him every fifteen minutes and noted his status in a logbook. The cell check log for September 29 to October 1, 2007 included at least ten notations of Holley's disruptive behavior observed during status checks, including use of profanity toward staff, threatening staff with bodily harm if he was released, and nonverbal actions such as banging his restraints on items in his cell. The log book included notations indicating that at 10:00 p.m. on September 29 and 30, 2007, staff members offered Holley a mattress, but he refused it.
Inmates in ambulatory restraints are provided three meals per day on a tray that includes an eating utensil (a "spork") wrapped in a napkin. In some cases, the spork is omitted for mental health reasons. Records do not indicate that Holley received a special meal tray for mental health reasons while in restraints, so defendants' evidence is that he would have received a spork with his meals.
In his complaint and his response to defendants' motion, Holley alleges that he was held in ambulatory restraints for two days in a cold cell without adequate clothing, bedding, eating utensils, toilet paper, soap, other hygiene products, or running water; that he had difficulty sleeping "because of the agonizing stiffness of his muscles and the cold temperature" in the cell; and that he was unable to wipe himself or wash his hands after using the toilet, thereby exposing him to a serious risk of a bacterial infection.
It is well established that "the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Claims under the Eighth Amendment have two components: (1) the objective component, whether a prison official's alleged wrongdoing was "objectively harmful" enough to establish a constitutional violation, and (2) a subjective component, whether the official "act[ed] with a sufficiently culpable state of mind." Id. at 8 (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). The showing required for each of these components varies with the context in which the plaintiff's claim arises, and the nature of the objective component requires comparison to "contemporary standards of decency" in that context. Id. at 8.
In the context of prison living conditions, an inmate must establish by a preponderance of the evidence that the prison official acted with deliberate indifference (subjective component) to a substantial risk of harm (objective component). Id. "To the extent that [prison living] conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman. 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). To prove deliberate indifference, the inmate must show that the official was aware of facts from which he could draw an inference that a substantial risk of harm existed, that he actually drew that inference, and that he disregarded the risk by failing to take "reasonable measures" to alleviate the risk. Farmer v. Brennan, 511 U.S. 825, 835-37, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "[T]o demonstrate that a deprivation is extreme enough to satisfy the objective component of an Eighth Amendment [conditions] claim, a prisoner must produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions." Shakka v. Smith, 71 F.3d 162, 166 (4th Cir.1995) (omitting internal quotations).
The length of confinement under the challenged conditions is also a factor to be considered. Hutto v. Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (noting that confinement in "a filthy, overcrowded cell and a diet of [1000 calories per day] might be tolerable for a few days and intolerably cruel for weeks or months"). Cf. Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (finding that inmate's allegations of being handcuffed to hitching post in hot sun for seven hours in awkward position with limited access to bathroom facilities and drinking water, as punishment after being disruptive during a work detail, satisfied subjective and objective elements of Eighth Amendment conditions claim); Beverati v. Smith 120 F.3d 500, 505 n. 5 (4th Cir.1997) (finding that inmates' alleged confinement for six months in unbearably hot cells, infested with vermin and smeared with urine and feces, with only cold food in smaller portions, less frequent changes of linen and fewer opportunities for recreation than the general population, did not state Eighth Amendment conditions claim based on lack of evidence that conditions "resulted in serious physical or emotional injuries or the grave risk of such harm").
The court finds no merit to Holley's objection. Unlike the plaintiff in the Hope case, 536 U.S. at 730, Holley was free to change position extensively while in restraints, as he could stand or sit or recline on his bunk. If he chose to remain in awkward positions, he cannot blame his sore muscles on defendants. By his own admission, the injury to his wrist caused by the handcuffs did not require medical treatment and subsided completely within days. This evidence simply does not support a finding that the ambulatory restraints caused Holley any significant or serious injury, as required to state an Eighth Amendment conditions claim.
Similarly, unlike the Hope case, Holley had regular access to food and liquids, could deposit his bodily waste in a toilet, and was not exposed to the hot sun without protection. He fails to demonstrate that any of the strip cell conditions, including deprivation of mattress and eating utensils, caused him anything more serious than temporary discomfort and embarrassment. The emotional effect of not being able to wipe himself, direct his urine, or eat with utensils does not compare with the level of humiliation at issue in Hope, where the inmate had no independent access to a toilet. Id. Simply put, the conditions and emotional stress Holley faced in ambulatory restraints are more analogous to the type of temporary discomforts and inconveniences at issue in the Beverati case, which the Fourth Circuit expressly found insufficient to support an Eighth Amendment conditions claim. 120 F.3d at 505 n. 5. While the Beverati inmates were not cuffed and shackled, they were subjected to the adverse conditions for a much longer period of time than Holley. For these reasons, Holley's objection must be overruled. The court will adopt the portion of the magistrate judge's report finding that Holley suffered no serious or significant physical or emotional injury as a result of the conditions to which he was subject in ambulatory restraints and will grant defendants' motion for summary judgment as to this claim.
In the context of excessive force, the appropriate inquiry for the subjective component of an Eighth Amendment claim is whether the prison official "applied [force" in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson, 503 U.S. at 6-7. The court must consider such factors as the amount of force used as related to the need for force, the threat reasonably perceived by the officers, and any attempts the officers made to "temper the severity of a forceful response." Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.1996).
In short, the "core judicial inquiry [is] . . . the nature of the force—specifically, whether it was nontrivial and was applied . . . maliciously and sadistically to cause harm." Wilkins v. Gaddy, ___ U.S. ___, 130 S.Ct. 1175. 1179, ___ L.Ed.2d ___ (2010). The extent of the injury the inmate suffered is relevant to both of these determinations: as a factor in determining "whether use of force could plausibly have been thought necessary in a particular situation" and as "some indication of the amount of force applied." Id. at 1178.
The magistrate judge correctly finds that failure to show serious injury does not, by itself, preclude an excessive force claim. Wilkins, 130 S.Ct. at 1180. Taking the evidence in the light most favorable to Holley, the court concludes, however, that the only reasonable inference to be drawn from the type and extent of the injuries Holley has proven is that application of ambulatory restraints for 48 hours is not a use of force that offends contemporary standards of decency so as to satisfy the objective component of an excessive force claim. It is undisputed that the restraints are designed and applied to limit an inmate's movements and not to inflict any measure of physical harm on him. The restraints themselves do not prevent the restrained inmate from changing position, stretching his muscles, eating his meals, sleeping, or using the toilet. To the extent that the restraints make these functions less comfortable and more difficult to execute effectively, they fall squarely among those conditions of prison life that are "restrictive and even harsh" without rising to the level of unconstitutional punishment. Rhodes, 452 U.S. at 347. In response to an inmate's admittedly disruptive misconduct, a temporary limitation of an inmate's access to hygiene products, bedding, eating utensils, and freedom of movement, which causes the inmate no physical injury other than temporary discomfort and embarrassment, simply cannot qualify as a use of force that is "repugnant to the conscience of mankind."
The magistrate judge recommends granting summary judgment as to Holley's claim that defendants violated his due process rights, in reliance on precedent from this court. See Johnson v. O'Brien, Case No. 7:08CV00022 (W.D.Va.2009) (finding no due process violation where inmate was held six hours in ambulatory restraints and three days in a stripped cell without a hearing). Holley objects, asserting that he was entitled to a hearing at some point during the 48—hour restraint period, in order to demonstrate that the restraints were no longer warranted by his conduct. He argues that confinement in restraints for two days, coupled with the stripped cell conditions, was "atypical" so as to give rise to due process protections. The court cannot agree.
A prisoner has no constitutionally protected liberty interest in remaining in a particular housing assignment. See Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir.1991). Changes "in a prisoners' location, variations of daily routine, changes in conditions of confinement (including administrative segregation), and the denial of privileges [are] matters which every prisoner can anticipate [and which] are contemplated by his original sentence to prison." Id. at 343. Liberty interests can arise from two sources, the Due Process Clause itself and state law. Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The Due Process Clause may create a liberty interest when the restraint imposed upon an inmate exceeds his sentence in an "unexpected manner." Id. State prison policies may also create liberty interests that are protected by the Due Process Clause when they "impos[e][an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484-86 (holding that prisoner had no liberty interest in being free from segregated confinement because it did not exceed his sentence or constitute an atypical, significant deprivation under state prison regulations).
To determine whether an inmate possessed a liberty interest protected by the Due Process Clause in avoiding a form of restraints, the court must "compare the conditions to which [he was] exposed in [the challenged restraints] with those [he] could expect to experience as an ordinary incident of prison life." Beverati, 120 F.3d at 503. Despite dire conditions that the inmate plaintiff's in the Beverati case allegedly suffered in administrative segregation, the court found that while the conditions "were more burdensome than those imposed on the general prison population, they were not so atypical that exposure to them for six months imposed a significant hardship in relation to the ordinary incidents of prison life." Id. at 504.
Holley offers nothing to support a different holding in this case. As a segregation inmate at a maximum security prison, he is in leg irons with his hands cuffed behind his back, every time he leaves his cell, where he spends 23 out of 24 hours per day, unless he is in another secure area, such as the shower or recreation cage. When an inmate is transported to a situation where he needs to be in a sitting position in a chair, such as an attorney visit or a dental examination, supervisory officials may approve restraining him with his hands cuffed in front of his body and attached to a waist chain. Compared to an environment where such restrictive conditions are a daily occurrence, even for administrative reasons absent an inmate's misconduct, the court cannot find that the additional, temporary restriction of ambulatory restraints, which cause no physical injury and allow extensive freedom of movement, is so atypical as to "impose a significant hardship in relation to the ordinary incidents of life." Beverati, 120 F.3d at 504.
For the stated reasons, the court will overrule Holley's objection, adopt the portion of the report addressing this claim, and grant defendants' motion for summary judgment as to the Due Process claim regarding ambulatory restraints.
Defendants did not move for summary judgment as to Holley's state law claims related to the ambulatory restraints incident.
For the stated reasons, the court will adopt the portions of the magistrate judge's report that are consistent with this memorandum opinion, and will grant defendants' motions for summary judgment as to all of plaintiff's claims under federal law. An appropriate order will issue this day.
The Clerk is directed to send copies of this memorandum opinion and the accompanying final order to plaintiff and counsel of record for defendants.
In accordance with the accompanying memorandum opinion, it is hereby
as follows:
1. After de novo review of the portions of the Report and Recommendation of the United States Magistrate Judge to which the parties have objected, plaintiff's objections are overruled; defendants' objection is sustained, the Report (Dkt. No. 108) is
2. Plaintiff's supplement claims under state law that are not addressed in defendants' motions for summary judgment are
3. This action is stricken from the active docket of the court.
The clerk shall send a certified copy of this final order and the accompanying memorandum opinion to plaintiff and to counsel of record for the defendants.
Terry J. Moore, Pound, VA, pro se.
Moore alleges the following sequence of facts in his complaint. On December 13, 2007, Moore placed his arm in the "chuck hold box" and told Officers Miller, Brown, and Taylor to contact the sergeant for him. The officers leaned on the box, applying pressure to Moore's arm and threatened to put him in ambulatory restraints if he did not remove his arm from the box. Moore refused, using profanity, and said he would not move his arm until he was allowed to speak to the sergeant. This standoff continued for five or ten minutes. Then, Miller threatened to charge Moore with spitting on him. Moore used profanity again, leaned into the crack of the door, and made a spitting sound. Moore explains that the outside of his cell door has a metal belt along its side. He remembers that Miller was standing farthest away from the door crack. However, Miller called Sgt. Day and reported that Moore had spit on him through the door crack. Day told Miller to go to medical to be "checked out." Day then turned to Moore and told him that if he would pull his arm out of the box, Day would speak with him as requested. Moore did so and then spoke with Day for several minutes. Lt. Harrison called over the radio and asked Day if there was a problem. Day said, "Not now," Harrison told Day to place Moore in four-point restraints for spitting on Miller. Day told Harrison that Moore had pulled his arm out of the box as directed, but Harrison confirmed that Assistant Warden Rowlett had ordered four-point restraints for Moore. Day told Moore to "cuff up" to be placed in restraints for spitting on Miller, and Moore complied.
Moore describes the restraint process as follows. First, the inmate is ordered to remove his clothes. Then, he is cuffed and shackled with his hands in front. A chain is wrapped around the cuffs and shackles and secured with a black box over the cuffs. Once the restraint procedure is complete, the officers drape and secure a "suicide blanket" over the inmate, who is left bent slightly at the waist. Once the process is complete, the inmate is escorted to a cell where he remains for a time. Moore believes that the ambulatory restraints are used only when an inmate poses a threat to himself, another individual, or property.
Moore filed an informal complaint to the institutional investigator, who responded that Moore had been charged with two disciplinary infractions in connection with the restraints incident. These charges were never served on Moore and are not "on file."
Moore brings the following claims related to the restraints incident:
Moore seeks monetary damages and an injunction directing that he be transferred to a lower security facility within thirty days from judgment in his favor in this case.
The court filed Moore's complaint conditionally and advised him of the need to amend to state specific facts about the extent of his injuries, what requests he made regarding the tightness of the cuffs, and what responses he received. Moore responded, asserting that he did not need to amend, that he had made a clear statement of his claims.
To state a cause of action under § 1983, a plaintiff must establish that he has been deprived of rights guaranteed by the Constitution or laws of the United States and that this deprivation resulted from conduct committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Factual allegations in support of a civil claim must be enough to raise a right to relief above the speculative level and have "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).
The Eighth Amendment prohibits prison officials from using force unnecessarily and wantonly to inflict pain on inmates. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). A claim that guards used excessive force against an inmate requires a dual inquiry: (1) the objective nature of the force used and the resulting harm and (2) the subjective intent of the officers. Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The key inquiry under the subjective prong of this test is "whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 8. In making this determination, the court must balance such factors as the need for the application of force, the relationship between the need and the amount of force actually applied, and the extent of injury inflicted. Id. at 7. De minimis injury can be conclusive evidence that the force used was also de minimis and, therefore, not violative of constitutional protections. See Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir.1994). Thus, absent the most extraordinary circumstances, an inmate cannot prevail on an excessive force claim unless he proves more than de minimis pain or injury. Id. The use of restraints to control prison inmates is not per se unconstitutional. Williams v. Benjamin, 943 F.2d 1572, 761 (4th Cir.1991).
"The Due Process Clause standing alone confers no liberty interest in freedom from state action taken within the sentence imposed." Sandin v. Conner, 515 U.S. 472, 480, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). (quotation marks and citation omitted). "Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law." Id. at 485. "[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement." Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005).
Sandin, 515 U.S. at 484. Changes "in a prisoners' location, variations of daily routine, changes in conditions of confinement (including administrative segregation), and the denial of privileges [are] matters which every prisoner can anticipate [and which] are contemplated by his original sentence to prison." Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir.1991).
Moore alleges that he should have been afforded a hearing before being placed under the restrictive conditions imposed by the ambulatory restraints for such a lengthy period of time. He admits, however, that he disobeyed a direct order to remove his arm from the box in a defiant attempt to force the officers into allowing him to speak to the sergeant. He also admits that he made a spitting gesture toward Miller, in defiance of Miller's threat to place him in ambulatory restraints, and made threatening and profane remarks to the officers. He admits that ambulatory restraints are used for inmates who pose a threat to others. Balancing these factors, the court cannot find that the ambulatory restraint conditions of which Moore complains were atypical so as to give rise to a protected liberty interest under the circumstances he alleges. The court concludes that he received the exact treatment that his threatening behavior and comments warranted under the established and well known practice of Red Onion as a maximum security prison.
The Clerk is directed to send copies of this memorandum opinion and accompanying order to plaintiff.
James M. Keyes, Jonesville, VA, pro se.
Keyes complains that in February, 2005 he arrived at the United States Penitentiary, Lee County ("USP Lee") and was placed in a two man cell, but did not have a cell mate. However, on August 8, 2005, Keyes was advised that he was going to be transferred to another cell and would be assigned a cell mate. Keyes alleges that he informed correctional personnel that due to "psychological reasons" he could not have a cell mate and physically resisted being removed from his cell and placed in another cell. Because of his resistance, Keyes was temporarily placed in a holding cell with allegedly inadequate shower and restroom facilities.
On August 10, 2005, Keyes claims he was removed from the holding cell, and was placed alone in a two-man cell. However, on August 11, 2005, he requested that Marcus Jones be assigned as his cell mate and, later that day, Jones was reassigned to the same cell. Keyes immediately began complaining to correctional personnel and "forewarn[ed]" the defendants that he was concerned that Jones might attack him or he might attack Jones, even though he admits that Jones was "the son of a good friend" and does not claim that Jones ever threatened him nor that Jones had a propensity for violence. Thereafter, Keyes made repeated requests to be assigned a single man cell or be placed into protective custody, but his requests were denied.
On September 23, 2005, while Jones was asleep, Keyes "pound[ed] Jones with punches." Immediately after assaulting his cell mate, Keyes was taken to the Special Housing Unit ("SHU"), but again he physically resisted being placed into a cell with another inmate. Accordingly, correctional employees placed him in hand and leg restraints attached to a belly chain, and put him in a holding cell which, unlike the other cells in the SHU, had no in-cell restroom or shower facilities. Keyes was released from ambulatory restraints approximately 30 hours later, and was provided with clean sheets and clothing. Keyes remained in the holding cell for 27 days, and alleges that during that time, because there were no restroom or shower facilities, he was required to use a "urine bottle" and "bed pan," had no in-cell showers or opportunities to wash his hands, and lost "approximately" 25 pounds. Keyes also complains that his personal property and hygiene items, including legal materials, were withheld while he was in the SHU. However, Keyes does not allege that he was denied food, medical care, or recreation opportunities, nor does he allege that he suffered any actual ill effects due to his temporary placement in the SHU.
Although the Eighth Amendment protects prisoners from cruel and unusual living conditions, an inmate is not entitled to relief simply because of exposure to uncomfortable, restrictive, or inconvenient conditions of confinement, for, "[t]o the extent that such conditions are restrictive or even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). As a result, in order to state a claim of constitutional significance regarding prison conditions, a plaintiff must demonstrate that the living conditions violated contemporary standards of decency and that prison officials were deliberately indifferent to those conditions. Wilson v. Setter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Additionally, the plaintiff must allege facts sufficient to show either that he has sustained a serious or significant mental or physical injury as a result of the challenged conditions or that the conditions have created an unreasonable risk of serious damage to his future health. Strickler v. Waters, 989 F.2d 1375, 1380-1381 (4th Cir.1993); Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). While having a cell mate or being placed in a holding cell with limited personal belongings, restroom, and shower facilities, may be inconvenient and unfortunate, Keyes has not alleged anything to suggest that these conditions violate contemporary standards of decency. See Shakka v. Smith, 71 F.3d 162, 168 (4th Cir.1995)(finding that merely being denied running water and/or the opportunity to shower for a period of days does not constitute a deprivation of constitutional magnitude). Further, although Keyes complains that he lost weight while housed in the holding cell, he does not allege that his weight loss was unintentional, that he actually became ill due to the conditions of which he now complains, nor that there were any lingering effects on his health. Further, as he concedes that he was provided with ample food and does not claim that he was denied medical attention during this period, I can find no support for his contention that merely a lack of in-cell shower and toilet facilities caused him to lose weight. Therefore, I find that Keyes has not alleged current or future injury and, thus, fails to state a claim under the Eighth Amendment.
Moreover, although Keyes complains that twice he was placed in a cell with inadequate restroom and showering facilities, he concedes that on both occasions he physically resisted being placed into a cell with those amenities because he would then be required to have a cell mate. Keyes does not allege any facts which reasonably suggest that he was actually in any danger if he was placed in a cell with another inmate. Rather, he complains only that he should not be exposed to such inmate's "self destructive conduct." As an inmate has no right to choose to have a single cell, I find that Keyes' unreasonable refusal to be placed into a multi-inmate cell resulted in his temporary incarceration in a cell with less comfortable amenities.
The subjective component of an excessive force claim requires an inmate to demonstrate that the force used by an institutional official, "inflicted unnecessary and wanton pain and suffering." Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). In evaluating such a claim, "the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on `whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'" Id. (quoting Whitley v. Albers, 475 U.S. 312, 32-21 (1986)). The Supreme Court and the Fourth Circuit have set out the following factors to consider in determining whether a prison official acted maliciously and sadistically: "the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Hudson, 503 U.S. at 7 (1992) (quotations omitted); Williams, 77 F.3d at 762. Also, the inmate must prove the correction official's actions were "`objectively harmful enough' to offend `contemporary standards of decency.'" Stanley v. Hejirika, 134 F.2d 629, 634 (4th Cir.1998) (quoting Hudson, 503 U.S. at 8). Although there is no requirement that an inmate suffer "serious" or "significant" pain or injury to demonstrate that a malicious or sadistic use of force was employed, he must allege "more than a de minimis pain or injury." Norman v. Taylor, 25 F.3d 1259, 1263 n. 4 (4th Cir.1994). "[A]bsent the most extraordinary circumstances, a plaintiff cannot prevail on an Eighth Amendment excessive force claim if his injury is de minimis." Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir.1998). However, a de minimis physical injury may amount to an Eighth Amendment violation if the force used was of the sort "repugnant to the conscience of mankind." In Norman v. Taylor, the Fourth Circuit stated:
We recognize that there may be highly unusual circumstances in which a particular application of force will cause relatively little, or perhaps no, enduring injury, but nonetheless will result in an impermissible infliction of pain. In these circumstances, we believe that either the force used will be "of a sort `repugnant to the conscience of mankind,'" and thus expressly outside the de minimis force exception, or the pain itself will be such that it can properly be said to constitute more than de minimis injury.
Although Keyes complains that he was restrained for thirty hours by hand and leg restraints attached to a belly chain, he does not allege he suffered any actual injury as a result of the restraint, thus any injury is de minimis and does not amount to a constitutional violation. Furthermore, Keyes has failed to allege any facts which establish those extraordinary circumstances on which a plaintiff can prevail on an excessive force claim when he suffers only de minimis injury. Merely a lack of due care for the prisoner's interests and safety fails to show the use of force which is "repugnant to the conscience of mankind." See Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)(finding that the infliction of pain in the course of a prison security measure, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense). Keyes concedes that immediately prior to his placement in ambulatory restraints he violently attacked his sleeping cell mate and physically resisted correctional officers efforts to restrain him and place him in another cell. Further, Keyes does not allege that he was unable to move, stand, lay down, eat, and/or utilize the restroom because of those restraints. Accordingly, 1 find that correctional officers utilized a reasonable amount of force in restraining Keyes and leaving him in restraints until he remained peaceable and, thus, find he fails to state a claim of constitutional magnitude.
Based on the foregoing, I find that Keyes has not presented any claims that constitute a violation of his constitutional rights. Therefore, I dismiss the complaint without prejudice pursuant to 28 U.S.C. § 1915A(b)(1).
The plaintiff is advised that he may appeal this decision pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure by filing a notice of appeal with this court within 30 days of the date of entry of this Order, or within such extended period as the court may grant pursuant to Rule 4(a)(5).
The Clerk is directed to send certified copies of this Memorandum Opinion and accompanying Order to plaintiff and to counsel of record for the defendants, if known.
Mohammed Saleh, Florence, CO, pro se.
On July 16, 2003, this court granted defendants' Motion to Stay Discovery pending a ruling on defendants' dispositive motion. That same day, plaintiff filed the instant Motion for Discovery. In light of the court's July 16, 2003 order staying discovery, the court denies plaintiff's Motion for Discovery as moot.
During the times relevant to this action, plaintiff was incarcerated at USP Leavenworth. On March 6, 2001, defendants removed plaintiff from general population and placed him in administrative detention. Plaintiff claims that defendants placed him in administrative detention due to an investigation into plaintiff's washing of his hands and feet, a religious ritual performed by followers of the Islamic faith. Defendants, on the other hand, assert they placed plaintiff in administrative detention pending an investigation into plaintiff's safety at the prison and attach as evidence the Administrative Detention Order stating this reason.
Senior Officer Specialist Douglas P. Nee was assigned to D cellhouse and was supervising inmates on Four Gallery, including plaintiff, who was housed in cell D-425. On March 20, 2001, at approximately 11:15 a.m., Lieutenant Torix informed Officer Nee that Five Gallery needed to be cleared of all inmates and that available cells on other ranges needed to be located for those inmates in Five Gallery. Specifically, Officer Nee was instructed to check with the single celled inmates on Four Gallery to see if the inmate had someone with whom he wanted to be celled. If an inmate did not state a preferred cellmate, that inmate was instructed that a cellmate would be assigned to them.
At approximately 12:10 p.m., the Four Gallery inmates became disruptive due to the impending cell rotations. Lieutenant Torix was assaulted by an inmate near cell D-409. Other inmates on the gallery began breaking the fire sprinkler heads in their cells, which caused flooding, and several inmates broke the porcelain toilets in their cells and threw porcelain pieces out of their cells. Defendants contend that, based on the violent and assaultive behavior of the inmates on the gallery, the fact that one staff member already had been assaulted, the destruction of government property, and the refusal of the inmates to comply with institutional regulations and staff directives, defendants determined that use of force procedures would be used.
There is a dispute regarding whether plaintiff engaged in disruptive behavior during the disturbance. Plaintiff contends that he did not, yet defendant Darrow filed an incident report, charging plaintiff with engaging in a group demonstration and stating that plaintiff was yelling at other inmates not to cooperate. In any event, as a matter of procedure, inmates were requested to voluntarily submit to restraints. If an inmate voluntarily submitted to restraints, he was removed from his cell, placed in ambulatory restraints,
Defendants contend that plaintiff voluntarily submitted to hand restraints, was removed from his cell, placed in ambulatory restraints, and returned to his cell without incident. Plaintiff asserts that he was extracted from his cell and that defendant Woods ordered the team to place him in ambulatory restraints. Plaintiff also claims that defendant Woods ordered the restraints to be extra tight. Defendant Woods testified that he did not give any such order.
Plaintiff contends that at approximately 4:40 p.m., he complained that his restraints were too tight but that the supervising lieutenant never showed up to loosen the restraints. Yet, defendants submit as evidence a completed Inmate Injury Assessment form, indicating that on March 20, 2001, at approximately 4:30 p.m., Physician's Assistant Haider Al—Rubiie conducted an injury assessment and medically evaluated plaintiff while plaintiff was in ambulatory restraints. According to both the Inmate Injury Assessment form and P.A. Al—Rubiie's sworn testimony, plaintiff voiced no complaints regarding pain or discomfort, and the assessment of plaintiff's ambulatory restraints did not indicate any problems. Then, according to the evidence in the record, P.A. Al—Rubiie conducted another medical evaluation of the plaintiff later that evening while plaintiff was in ambulatory restraints. At that time, plaintiff's circulation was within normal limits, the tightness of the restraints was normal, there was no evidence of
The next morning, at approximately 4:25 a.m., Physician's Assistant Pierre E. Camps performed a medical evaluation on plaintiff while plaintiff was in ambulatory restraints. The evidence in the record shows that P.A. Camps checked the restraints for tightness by placing his finger between the restraints and plaintiff's wrist, that plaintiff was able to move all his extremities, that there was no evidence of injury to the wrists, and that plaintiff did not make any comments to P.A. Camps regarding pain or problems with the restraints.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
Plaintiff's Complaint does not clearly allege the basis for invoking jurisdiction. Plaintiff first alleges that jurisdiction is invoked pursuant to 28 U.S.C. § 1331 and RFRA, 42 U.S.C. § 2000bb-1(c), and then proceeds to assert constitutional claims under the Eighth Amendment (Count 1) and the First Amendment (Count 11). Later in his Complaint, plaintiff asserts that he has filed a "Tort Claim," and attaches a claim he filed under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), along with a letter denying that claim. Plaintiff asserts in his response brief that he is suing under the FTCA.
Section 1346(b) grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and "render[ed]" itself liable. Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). This category includes claims that are: "[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b).
Thus, to be actionable under § 1346(b), a claim must allege, inter alia, that the United States "would be liable to the claimant" as "a private person" "in accordance with the law of the place where the act or omission occurred." Construing this provision, the Supreme Court held that a constitutional tort claim could not contain such an allegation. F.D.I.C. v. Meyer, 510 U.S. 471, 477-78, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The Court stated: "[W]e have consistently held that § 1346(b)'s reference to the `law of the place' means law of the State—the source of substantive liability under the FTCA. By definition, federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right. . . . [T]he United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims." Id. (internal citations omitted).
Plaintiff in this case has alleged only constitutional tort claims based upon violations of the First and Eighth Amendments of the United States Constitution and RFRA. Accordingly, this court lacks jurisdiction over plaintiff's claims brought pursuant to the FTCA. See Johnson v. Sawyer, 47 F.3d 716, 727 (5
In an Eighth Amendment claim for excessive force, the court must determine "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillan, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Whether force is excessive in violation of the Eighth Amendment depends upon the circumstances confronting the officer as well as the nature and amount of force applied in reaction. Whitley v. Albers, 475 U.S. 312 321, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986).
Under Hudson, it is clear that, while the extent of injuries suffered by an inmate is relevant to whether the force involved was unnecessary and wanton, the mere absence of injury does not, itself, end the inquiry. Minor injury does not preclude an action for excessive force, but "de minimis uses of physical force" ordinarily will not support a claim. Hudson, 503 U.S. at 9-10. As such, a plaintiff need not show that he suffered serious injury, but the extent of his injury is relevant in evaluating the necessity and wantonness of the force.
In this case, there is no evidence in the record that plaintiff suffered any injury at all. Plaintiff's Complaint alleges that he suffered back pain and partial loss of feeling in his hands and feet. In his response brief, plaintiff also alleges he suffered psychological pain. However, the evidence in the record, which plaintiff does not controvert, shows that plaintiff never complained that his restraints were too tight. More significantly, the medical records pertaining to plaintiff include no entries indicating treatment for any physical injuries as alleged by plaintiff. To the contrary, plaintiff was medically evaluated three times, and the medical records indicate that each time plaintiff was evaluated, there appeared no signs of injury. Further, there is no evidence in the record that plaintiff sought medical treatment, either physical or psychological, after the restraints were removed. Plaintiff's conclusory, unsupported allegations are simply insufficient to refute the medical records.
Plaintiff has described, and the facts produced by defendants corroborate, that there was a disturbance on March 20, 2001, in plaintiff's housing unit (D-Cell House) by inmates protesting cell assignments. These facts demonstrate that prison officers had a legitimate concern in restoring order to the unit. Plaintiff claims that he was not participating in the disturbance, yet there is evidence in the record to the contrary. In any event, even taking plaintiff's allegations as true, the placement of plaintiff (and other inmates) in amubulatory restraints to quell a prison disturbance does not amount to cruel and unusual punishment. Plaintiff's allegations do not show that the defendants used more force than was necessary to maintain or restore discipline during a time when many of the inmates in D-Cell House were vigorously protesting cell assignments.
Additionally, plaintiff makes no allegation that defendants applied force in the actual placement in restraints. In fact, plaintiff alleges that he complied and cooperated completely, and there is no allegation that the manner in which defendants placed plaintiff in restraints was inappropriate. And the fact that plaintiff remained in ambulatory restraints for eighteen hours to twenty-four hours does not, itself, rise to the level of an Eighth Amendment violation. See Cunningham v. Eyman, 17 Fed. Appx. 449, 453-454 (7
Plaintiff alleges he was placed in administrative detention on March 6, 2001, "during an investigation into the performance of religious ablutions (washing hands and feet) by followers of the Islamic faith." (Complaint, p. 3). Plaintiff further claims that the March 20, 2001, incident involving ambulatory restraints occurred because he was Muslim and that, as a result, he was deprived of his right to practice the Islamic faith.
The court notes that plaintiff's response brief makes no argument to support any claim relating to a restraint or inhibition from freely practicing his religion, but appears more to clarify his claim as being that of religious retaliation. The court will nevertheless address plaintiff's free exercise allegation.
A prison inmate is entitled to reasonable opportunity to practice his religion under the Free Exercise Clause of the First Amendment. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). Although inmates clearly retain their First Amendment right to free exercise of religion, incarceration necessarily limits that right. O'Lone v. Estate of Shabazz, 482 U.S. 342, 353, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). To state a free exercise claim, a plaintiff must first show that the official action burdened a religious belief rather than a philosophy or way of life. Wisconsin v. Yoder, 406 U.S. 205, 215-19, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Second, the burdened belief must be sincerely held by the plaintiff, and that plaintiff must demonstrate that the official action has interfered with the exercise or expression of her or his own deeply held faith. Thomas v. Review Bd., 450 U.S. 707, 714-16, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981).
In this case, plaintiff has not articulated any interference with the practice of his Muslim beliefs. Plaintiff offers nothing but his conclusory allegation that "[d]efendant John Doe 1 and defendant Woods were aware that their retaliatory actions . . . deprived him of his right to practice the Islamic faith," (Complaint, p. 3), but plaintiff has not alleged any facts showing how the defendants' acts interfered with that right. As previously noted, there is no allegation that his placement in detention and ambulatory restraints interfered with his bodily movement or daily activity. Clearly, defendants' actions did not interfere with plaintiff's exercise or expression of plaintiff's Islamic beliefs.
Prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights. Smith v. Maschner, 899 F.2d 940, 947 (10
The court turns to plaintiff's allegation that he was placed in ambulatory restraints on March 20, 2001 in retaliation for practicing his religion. Plaintiff has acknowledged that there was an inmate disturbance in his housing unit on March 20, 2001, and that he, as well as other inmates, were placed in ambulatory restraints.
However, even assuming defendant Wood made the statement as plaintiff claims, the statement itself evidences a legitimate reason for placing plaintiff in restraints: treating all inmates on the gallery in a consistent manner. It is a reasonable conclusion that inmates receiving different or favorable treatment by prison officials may be perceived by other inmates as a sign that somehow the inmate has cooperated or complied with staff. In a correctional setting, such a perception could place the inmate in danger of retaliation from other inmates. In the prison context, prison officials must be given broad flexibility in managing penal facilities. Sandin v. Conner, 515 U.S. 472, 482-83, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Absent competent evidence of a discriminatory animus, this court will not second-guess defendants' decision to place plaintiff in ambulatory restraints in an effort to restore order to the unit and to ensure the future safety of plaintiff. Summary judgment on plaintiff's First Amendment claim is granted.
Plaintiff, in conclusory fashion, states that his claim falls within the broad language of RFRA, which states that government officials "shall not substantially burden a person's exercise of religion." 42 U.S.C. 2000bb-1(a) (2002). "[A] plaintiff establishes a prima facie claim pursuant to RFRA by proving the following three elements: (1) a substantial burden imposed by the federal government on a(2) sincere (3) exercise of religion." Kikumura v. Hurley, 242 F.3d 950, 960 (10
IT IS THEREFORE ORDERED that plaintiff's Motion for Discovery (Doc. 31) is denied as moot, and defendants' Motion to Dismiss or for Summary Judgment (Doc. 24) is granted. This case is hereby dismissed.
Mitchell Theophilus Garraway, Lewisburg, PA, pro se.
A July 22, 2004 Order of Reference under 28 U.S.C. § 636(b) referred this case to now retired Magistrate Judge Schlatter to conduct pretrial proceedings and to issue recommended rulings on diapositive motions. The case was reassigned to me on February 10, 2006.
The following matters are before the court at this time: (1) Federal Defendants' Motion to Dismiss, filed April 19, 2005; and (2) Defendants' Motion for Summary Judgment and Brief in Support Thereof, filed September 16, 2005. The motions are fully briefed and I have determined that oral argument would not be of material assistance.
Defendants United States and the Federal Bureau of Prisons ("BOP") move to dismiss plaintiffs' claims against them for monetary relief for lack of subject matter jurisdiction.
The party bringing an action in federal court bears the burden of showing that the case falls within the court's subject matter jurisdiction. Henry v. Office of Thrift Supervision, 43 F.3d 507, 512 (10
The United States, its agencies, and its officers sued in their official capacities enjoy absolute immunity against suit for monetary damages for constitutional violations. See FDIC v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir.2001). Accordingly, the United States and the BOP should be dismissed because the court lacks jurisdiction over plaintiff's constitutional claims for monetary relief against those entities.
The purpose of summary judgment is to determine whether trial is necessary. White v. York Ina. Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary judgment is appropriate under Fed.R.Civ.P. 56(c) when 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When applying this standard, the court reviews the pleadings and documentary evidence in the light most favorable to the non moving party. Gray v. Phillips Petroleum, 858 F.2d 610, 613 (10th Cir.1988). To defeat a properly supported motion for summary judgment, "there must be evidence upon which the jury could reasonably find for the plaintiff." Pants v. Mission Hills Bank, NA., 60 F.3d 1486, 1490 (10th Cir.1995)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Speculation, supposition and unsupported factual allegations will not establish an issue of material fact necessitating trial. Handy v. Price, 996 F.2d at 1064, 1068 (10th Cir.1993).
The individual defendants have asserted the qualified immunity defense in response to plaintiff's constitutional claims against them in their personal capacities. Qualified immunity shields public officials from civil damages liability if their actions did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). When a public official raises the defense of qualified immunity, the plaintiff must first establish that the complained of conduct constitutes a violation of a constitutional or statutory right. See Smith v. Cochran, 339 F.3d 1205, 1211 (10
Plaintiff claims that defendants Rittenmeyer, Lincoln and Robles used excessive force on February 12, 2003 when they assaulted him in the SHU lieutenant's office, in violation of plaintiff's Eighth Amendment rights.
The following facts are undisputed, or if disputed, are construed in plaintiff's favor on a motion for summary judgment. Plaintiff is incarcerated at USP—Florence, in the Special Housing Unit ("SHU"). (Compl., at 2-3) On February 12, 2003, at approximately 9:00 a.m., defendant prison guard Watson ordered plaintiff to submit to hand restraints so that Watson could move plaintiff from his cell to the shower. (Compl., at 3
The defendants who were present in Rittenmeyer's office at the time of the incident state that moments after the escorting officers placed plaintiff in the chair, plaintiff got up without permission and "lunged," "charged," "mov[ed] quickly," or moved in a "threatening" or "aggressive" manner toward the escorting officers, Spann and Santiago, who were leaving the office. See Declarations of Lincoln, at ¶ 9, Rittenmeyer, at ¶ 13, Mark Robles, ¶ 9, and Watson, at ¶ 15. Robles avers that "at the time I saw Garraway coming towards me, I viewed him as a threat to myself and the other staff nearby." (Robles Declaration, ¶ 12) Robles responded by "grabb[ing]" plaintiff and forcing him to the ground. (Id. at ¶ 11; Rittenmeyer Declaration, at ¶ 15-16) Robles states that he did not injure plaintiff in any way and that he did not see any other staff member make physical contact with plaintiff, except to place plaintiff in ambulatory restraints. (Robles Declaration, at ¶ 17-19) Lincoln and Rittenmeyer state that they did not punch, kick or otherwise physically assault the plaintiff (Lincoln Declaration, at ¶ 11; Rittenmeyer Declaration, at 8) Watson and Santiago did not see any staff members physically assault the plaintiff and did not observe any physical injury to plaintiff as a result of his being forced to the ground. (Watson Declaration, at ¶¶ 17, 22; Declaration of Steven Santiago, at ¶ 12)
Defendant Rittenmeyer issued plaintiff an incident report for attempted assault on staff (Compl. 3c, and attached Ex. 1) Rittenmeyer reported that plaintiff "lunged towards officer Spann in a very aggressive manner." (Id.) During the disciplinary hearing, plaintiff submitted interrogatories for defendant Santiago. (Compl. 3c, and attached Ex. 13) Santiago stated in response to one interrogatory that he did not observe plaintiff "lunge" at officer Spann or behave in an aggressive manner. (Id.) After a hearing, the disciplinary hearing officer ("DHO") found that no prohibited act was committed and ordered that the incident report be expunged. (Compl. 3c, and attached Ex. 14)
The critical inquiry in an Eighth Amendment excessive force claim is whether the force was applied by prison officials in a good-faith effort to maintain or restore discipline, or was applied maliciously or sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). In determining whether an Eighth Amendment violation has occurred, the court should consider "the relationship between [the need for application of force] and the amount of force used, the threat `reasonably perceived by the responsible officials,' and `any efforts made to temper the severity of a forceful response.'" Hudson, 503 U.S. at 7 (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). The absence of serious physical injury does not preclude an excessive force claim because the constitutional inquiry focuses upon whether an "unnecessary and wanton infliction of pain" has occurred. Id.; Northington v. Jackson, 973 F.2d 1518, 1523 (10
The SHU is a higher security area of the prison where inmates who are deemed unable to live in the general population are assigned. (Ex. 18, ¶ 18) Plaintiff has a history of insubordination and disruptive behavior and BOP staff considered him to be a problem inmate. (Lincoln Declaration, ¶ 5; Watson Declaration, ¶ 34)
Plaintiff admits that immediately before defendants' use of force against him, he was attempting to leave Rittenmeyer's office without permission and unescorted, which is a violation of prison rules. (Compl., 3a; Deposition of Mitchell Garraway, MSJ Ex. 3, at 57; (Declaration of Lee Rittenmeyer, ¶ 17; Declaration of Kenneth Lincoln, at ¶ 12) Accordingly, I recommend finding that some amount of force probably was justified to maintain order in the SHU, although the amount of force necessary was less because plaintiff was handcuffed and his legs were shackled at the time force was applied.
Further, although several defendants maintain that plaintiff lunged or charged at officers Spann and Santiago, plaintiff was not found guilty of the charge of attempted assault in a prison disciplinary proceeding, based, at least in part, on Santiago's statement in that proceeding that plaintiff did not lunge at him. There is also no evidence in the record that plaintiff verbally threatened any of the defendants or that plaintiff has any prior history of assaultive behavior while in prison. Accordingly, I recommend finding that genuine issues of material fact remain about whether the force Rittenmeyer and Lincoln used against plaintiff in the SHU lieutenant's office on February 12, 2003 violated plaintiff's Eighth Amendment rights. See Merritt v. Hawk 153 F.Supp.2d 1216 1223-24 (D.Colo.2001)(denying defendants' motion for summary judgment on prisoner's excessive force claim because evidence that prison guards "body-slammed [plaintiff] against walls and the floor, kicked, punched, and choked him, and slammed his head into walls, while he was handcuffed" was "sufficient to allow a reasonable jury to infer defendants were acting with malicious and sadistic intent").
I further recommend finding that genuine issues of material fact remain about whether Robles and Watson are liable for using excessive force against plaintiff. Even if Robles' alleged pushing the plaintiff in the chest and striking plaintiff in the face and neck with his forearm to force plaintiff to the ground are not sufficient to constitute excessive force under the circumstances, both Robles and Watson may be held liable for failing to take action to prevent Rittenmeyer and Lincoln's unconstitutional conduct. See Mick v. Brewer, 76 F.3d 1127, 1136 (10
Moreover, although the physician's assistant who examined plaintiff found no objective signs of injury, refuting plaintiff's subjective statement that he suffered a "bleeding
Plaintiff claims that defendants Drennan, Gunja, Lincoln, Maroni, Ortega, Rios, Rittenmeyer, Robles, Valle and Watson violated plaintiff's Eighth Amendment right to be free from excessive force and his Fifth Amendment substantive due process rights by placing and maintaining him in hard ambulatory restraints (consisting of handcuffs attached to a waist chain by means of a "black box" and a padlock and leg
The Eighth Amendment, rather than the Fifth Amendment Substantive Due Process Clause, serves as the primary source of protection for convicted prisoners against excessive use of force by prison guards. Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)(recognizing that any protection which substantive due process affords convicted prisoners is the same as that provided by the Eighth Amendment). Accordingly, I analyze plaintiff's claim under Eighth Amendment standards and consider the BOP's program statement directives on the use of ambulatory restraints in that context.
The use of restraints for punitive purposes violates the Eighth Amendment. See Fulford v. King, 692 F.2d 11, 14-15 (5th Cir.1982); Williams v. Vidor, 17 F.3d 857, 859 (6th Cir.1994)(denying motion for summary judgment to defendant who authorized inmate's continued placement in top-of-bed restraints for seventy-two hours after inmate damaged cell toilet and repeatedly kicked cell door because record did not establish as matter of law that purpose of continued physical restraint was not punitive). However, physical restraints are constitutionally permissible where there is a legitimate penological justification for their use. See Key, 176 F.3d at 1086-87 (finding no Eighth Amendment violation where prisoner was placed in ambulatory restraints for twenty-four hours after he threw water on a prison guard); Williams v. Burton, 943 F.2d 1572, 1576 (11th Cir.1991)(holding that prison officials' placement of prisoner in four-point restraints for twenty-eight hours, with only brief intervals for toilet use, was not excessive force where prisoner made verbal threats to staff, spat and threw bodily fluids on them; purpose of restraints was to reduce or eliminate prisoner's ability to inflict physical harm to himself or to the correctional officers).
Ambulatory restraints do not cause pain unless the inmate resists application. (Collins Declaration, at ¶ 22; Ortega Declaration, at ¶ 14) Ambulatory restraints are designed to allow the prisoner to move around in his cell and to perform his daily living activities. (Ortega Declaration, at ¶ 12; BOP P.S. 5566.05, ¶ 9)
The "After—Action Review Report/Use of Force, Restraints . . ." contains the following official "Description of Incident":
(MSJ Ex. 21, at 9) The After—Action Review Report also states that ambulatory restraints were applied to enforce institutional regulations. (Id. at 8)
As discussed previously, defendants submit several declarations stating that as he headed for the door, plaintiff attempted to assault officer Spann. Plaintiff avers that he did not charge or lunge at any staff members when he attempted to leave the SHU lieutenant's office, nor did he resist staffs efforts to place him in ambulatory restraints. (Plaintiff's October 5, 2005 Declaration, Responses to Lincoln, Rittenmeyer, and Robles Declarations) While plaintiff was given an incident report for "attempted assault on staff," the DHO found that plaintiff did not commit a prohibited act and ordered the incident report expunged.
If defendants' only justification for placing plaintiff in ambulatory restraints was because of plaintiff's alleged attempted assault on a staff member, I would recommend finding that genuine issues of material fact existed about whether the restraint was punitive or was justified by a legitimate penological interest. However, the evidence is undisputed that plaintiff violated institutional rules when he got up from his chair and walked towards the door without permission. Defendants have a legitimate penological interest in enforcing prison rules. Moreover, plaintiff does not allege that defendants applied the restraints in a manner to inflict pain. The undisputed evidence is that ambulatory restraints do not cause pain when applied properly. Accordingly, I recommend finding that defendants' initial placement of plaintiff in ambulatory restraints did not violate plaintiff's Eighth Amendment rights. See Hudson, 503 U.S. at 7 (constitutional inquiry in an Eighth Amendment excessive force claim focuses upon whether an "unnecessary and wanton infliction of pain" has occurred); James v. Milwaukee County, 956 F.2d 696, 699 (7th Cir.1992)(1992)(recognizing that "prison conditions involving the wanton and unnecessary infliction of pain, totally without penological justification, offend the constitution")(citing Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)).
Similarly, defendant Drennan, the health services administrator, avers that, to his knowledge, the statements made by staff members to justify the use of ambulatory restraints on plaintiff were true. (Declaration of Guy Drennan, at ¶ 13) Plaintiff has not pointed to any evidence to the contrary. Accordingly, plaintiff has also failed to demonstrate the existence of a material issue of fact from which a jury could reasonably conclude that defendant Drennan should be found liable for his role in the decision to continue restraining plaintiff for fifty hours.
Although factual issues remain about whether defendant Rittenmeyer, an executive staff member with authority to remove the restraints, knew that plaintiff's placement and continuation in ambulatory restraints was not justified by plaintiff's alleged attempted assault of a prison guard, the evidence is undisputed that plaintiff violated prison rules by attempting to leave the SHU lieutenant's office unescorted and that he continued to be uncooperative with staff members after he was restrained. Even if Rittenmeyer violated plaintiff's constitutional rights by not releasing plaintiff from the restraints sooner, I recommend finding that defendant Rittenmeyer is entitled to qualified immunity because his conduct did not violate clearly established law.
Plaintiff has not cited, nor has the court's research revealed, any federal appellate case law holding that a prison official who maintains a prisoner in ambulatory restraints for two days because the prisoner violated an institutional rule and continued to be uncooperative violates the Constitution, in the absence of any evidence that defendant applied the restraints to cause pain.
Plaintiff also claims that defendants Rittenmeyer, Santos—Collins, Grafton, Gunja, Lincoln, Rittenmeyer, Robles, Sams, and Watson violated his Fifth Amendment substantive due process rights when they made false statements in written reports to justify the use of physical restraints
Plaintiff next claims that his Eighth Amendment right to humane conditions of confinement was violated while he was in ambulatory restraints because defendants Collins, Drennan, Gunja, Lincoln, Maroni, Ortega, Rios, Rittenmeyer, Robles, Valle and Watson refused plaintiff's verbal requests to remove his pants/coveralls so that plaintiff could use the toilet, causing plaintiff to defecate in his clothing on February 13 and 14, 2003, and then forced plaintiff to remain in soiled clothing.
Conditions of confinement violate the Eighth Amendment "only when the alleged deprivation is objectively, sufficiently serious, and the prison official acts with deliberate indifference to inmate health or safety." Atkins v. Rodriguez, 59 F.3d 1034, 1037 (10
The Eighth Amendment "`does not mandate comfortable prisons,' and conditions imposed may be `restrictive and even harsh.'" Barney v. Pulsipher, 143 F.3d 1299, 1311 (10th Cir.1998)(quoting Rhodes, 452 U.S. at 347). To satisfy the objective prong of the Farmer test, an inmate must show that conditions were not only uncomfortable, but also rose to the level of "conditions posing a substantial risk of serious harm" to inmate health or safety. Farmer, 511 U.S. at 834. The severity and duration of the deprivation are relevant factors in determining the seriousness of the deprivation. Barney, 143 F.3d at 1311; DeSpain v. Uphoff 264 F.3d 965, 974 (10
Plaintiff avers that the ambulatory restraints prevented him from removing his coveralls to use the toilet, that he defecated in his clothing on February 13 and 14, 2003, and that he was forced to move about his cell and to eat and sleep with feces pasted to his body and the inside of his clothing until the restraints were removed at approximately 1:00 p.m. on February 14, 2003. (Compl., at 6; Plaintiff's October 5, 2005 Declaration, at 23, 33; Declaration of Benjamin Brieshke, ¶ 12, and attached Restraint Application Review Form notes)
The record shows that if restraints are applied properly, inmates should be able to remove them to use the toilet. Plaintiff's general averment that he could not remove the restraints for toileting is inadequate in the face of defendants' evidence. Instead, plaintiff should have provided a detailed explanation about his inability to remove the restraints. However, even if a material factual issue remains about whether plaintiff was unable to remove the restraints, I recommend finding that plaintiff has not satisfied his burden of proof under the objective prong of the Eighth Amendment inquiry in order to defeat the defendants' entitlement to qualified immunity.
In DeSpain, 264 F.3d at 974, the Tenth Circuit held that an inmate's allegations that flood conditions in his cell block area backed up toilets and exposed the inmate to other prisoners' urine and feces in the standing water for a three-day period stated an Eighth Amendment violation because it was difficult to avoid contact between the inmates' food and the contaminated water. The Tenth Circuit has also concluded that forcing an inmate to live in a feces-covered cell for three days violates the Eighth Amendment. See McBride v. Deer, 240 F.3d 1287, 1291 (10
Other courts have been cautious about condoning conditions that include an inmate's proximity to human waste. See, e.g., Howard v. Adkison, 887 F.2d 134, 137 (8th Cir.1989)(upholding jury's finding that inmate's right to humane conditions of confinement was violated where inmate was placed in a cell covered with filth and human waste, given a mattress that was torn, dirty, stained with urine, and covered with human waste, and was denied access to proper cleaning supplies); LaReau 12. MacDougall, 473 F.2d 974, 978 (2d Cir.1972) ("Causing a man to live, eat, and perhaps sleep in close confines with his own human waste is too debasing and degrading to be permitted.")
Plaintiff's circumstances are factually distinguishable from those in DeSpain, McBride, Howard and LaReau. First, plaintiff was able to eat his meals without fear of his food being contaminated, unlike the plaintiff in DeSpain. There is no evidence that plaintiff was not able to wash his hands while in the ambulatory restraints. Second, the inmates in DeSpain and McBride were exposed to the unsanitary conditions for three days. In LaReau, the offensive conditions lasted for five days. The inmate in Howard was forced to live in a cell covered with human waste for approximately two years. Here, plaintiff states that he soiled himself sometime on February 13, 2003 and again on February 14. The restraints were removed at approximately 1:00 p.m. on February 14. The brevity of the condition, together with its confinement to a limited area and plaintiff's ability to wash his hands, did not give rise to a serious health hazard.
Accordingly, 1 recommend finding that plaintiff has failed to show that he was subjected to a condition of confinement sufficiently serious to satisfy the objective prong of the Eighth Amendment inquiry. Defendants are entitled to summary judgment on plaintiff's claim that defendants violated his Eighth Amendment right to humane conditions of confinement when they failed to remove the ambulatory restraints so that plaintiff could use the toilet and when they forced him to wear soiled pants for approximately one day.
For the reasons set forth above, it is
RECOMMENDED that the Federal Defendants' Motion to Dismiss, filed April 19, 2005, be GRANTED. It is
FURTHER RECOMMENDED that Defendants' Motion for Summary Judgment and Brief in Support Thereof, filed September 16, 2005, be GRANTED IN SUBSTANTIAL PART AND DENIED IN PART AS FOLLOWS: Plaintiff's constitutional claims against defendants Drennan, Grafton, Gunja, Lincoln, Maroni, Ortega, Rios, Rittemineyer, Robles, Sams, Santos—Collins, Valle and Watson should be DISMISSED, except plaintiff's Eighth Amendment excessive force claims against defendants Rittenmeyer, Lincoln, Robles and Watson which are based on the assault which occurred in the SHU Lieutenant's office on February 12, 2003. It is
FURTHER RECOMMENDED that defendants United States of America, Federal Bureau of Prisons, Guy Drennan, Dale Grafton, Joseph Gunja, Mike Maroni, Leonel Ortega, Hector A. Rios, Richard Sams, Celest Santos-Collins, and Benjamin Valle be DISMISSED.
Within ten days after being served with a copy of the proposed findings and recommendation, any party may serve and file written objections to the proposed findings and recommendation with the Clerk of the United States District Court for the District of Colorado. The district judge shall make a de novo determination of those portions of the proposed findings or specified recommendation to which objection is made. The district judge may accept, reject, or modify, in whole or in part, the proposed findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
Failure to make timely objections to the magistrate judge's recommendation may result in a waiver of de novo review of the recommendation by the district judge and may also waive the right to appeal from a judgment of the district court based on the findings and recommendations of the magistrate judge.
Daniel C. Kimball, Dallas, PA, pro se.
Michael J. McGovern, Pennsylvania Department of Corrections, Camp Hill, PA,
1. Plaintiff, Daniel C. Kimball, an inmate confined at the State Correctional Institution at Dallas, commenced the instant civil rights action pursuant to 42 U.S.C. § 1983 on April 7, 2006. An amended complaint was filed on May 15, 2006;
2. The matter was assigned to Magistrate Judge J. Andrew Smyser;
3. On November 27, 2006, the Magistrate Judge filed a forty-six (46) page Report and Recommendation, wherein he recommended that:
Based on the foregoing, it is recommended that the corrections defendant's motion (doc. 20) to dismiss less than all of the plaintiff's amended complaint be granted in part and denied in part. It is recommended that the plaintiff's claims for monetary damages against the correction defendants in their official capacities be dismissed, that the plaintiff's access to the courts claim be dismissed that the plaintiff's claim against the corrections defendants based on threats and verbal abuse be dismissed, that the plaintiff's due process claim against defendants Angelovic, McDermott and Dwyer based on the false misconducts be dismissed, that the plaintiff's claim against defendants Lucas and Wickiser based on the processing of his grievances be dismissed, and that the plaintiff's due process claim ased on his transfer to another cell on March 28, 2006 be dismissed. It is recommended that the corrections defendants' motion to dismiss be otherwise denied. It is further recommended that the plaintiff be granted leave to file a second amended complaint to attempt if appropriate, to plead an access to the courts claim upon which relief can be granted and to plead a retaliation claim upon which relief can be granted based on the misconducts issued by defendants Angelo vie, McDermott and Dwyer. The plaintiff should be instructed that this second amended complaint shall be complete in all respects, shall be a new pleading which stands by itself as an adequate complaint without reference to the complaint or amended complaint already filed and shall also be "simple, concise, and direct" as required by the Kules of Civil Procedure. It is further recommended that defendant Bohinski's motion (doe. 31) to dismiss the amended complaint be denied. Finally, i is recommended that the case be remanded to the undersigned for further proceedings.
5. No objections were filed to the Report and Recommendation;
AND, IT FURTHER APPEARING THAT:
6. If no objections are filed to a Magistrate Judge's Report and Recommendation, the plaintiff is not statutorily entitled to a de novo review of his claims. 28 U.S.C. § 636(b)(1)(C); Thomas v. Am, 474 U.S. 140 (1985). Nonetheless, the usual practice of the district court is to give "reasoned consideration" to a Magistrate Judge's report prior to adopting it. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.1987);
7. We have reviewed the Magistrate Judge's Report and we find the factual and legal analysis to be thorough and accurate. Therefore, we will adopt his recommendations in their entirety.
1. The Report and Recommendation of Magistrate Judge J. Andrew Smyser dated November 27, 2006 (Document 54) is adopted in its entirety; and
2. The above-captioned action is remanded to the Magistrate Judge for further proceedings.
On April 7, 2006, the plaintiff, a state prisoner proceeding pro se, commenced this action by filing a complaint. On May 15, 2006, the plaintiff filed an amended complaint.
The amended complaint names twenty-four defendants. The amended complaint names the following individuals as defendants: 1) P.B. Walters, a corrections officer at the State Correctional Institution at Dallas (SCI-Dallas); 2) R.M. McCoy, a corrections officer at SCI-Dallas; 3) Angelovic, a corrections officer at SCI-Dallas; 4) J. Boberski, a corrections officer at SCI-Dallas; 5) J. Corbett, a corrections officer at SCI-Dallas; 6) McDermott, a corrections officer at SCI-Dallas; 7) Olszyk, a corrections officer at SCI-Dallas; 8) Donald Buck, a sergeant at SCI-Dallas; 9) John Wickiser, a lieutenant at SCI-Dallas; 10) James Wynder, the Superintendent at SCI-Dallas; 11) Dwyer, a corrections officer at SCI-Dallas; 12) D.J. Werts, a corrections officer at SCI-Dallas; 13) Wilk, a corrections officer at SCI-Dallas; 14) C.J. Yetter, a corrections officer at SCI-Dallas; 15) Rapson, a food service manager at SCI-Dallas; 16) Robin Lucas, the Grievance Coordinator at SCI-Dallas; 17) Louise Cicerchia, a counselor at SCI-Dallas; 18) Rev. Pall, a chaplain at SCI-Dallas; 19) Deacon Jose Munoz, a chaplain at SCI-Dallas; 20) Rick Hennigan, a nurse at SCI-Dallas; 21) Donald Donovan, a physician's assistant at SCI-Dallas; 22) Dr. Oludolapo Kale, a psychiatrist at SCI-Dallas; 23) Dr. Bohinski, a doctor at SCI-Dallas; and 24) A.J. Sromovski, a corrections officer at SCI-Dallas.
The amended complaint includes many claims including claims that some of the defendants used excessive force against the plaintiff, that some of the defendants denied the plaintiff medical care, and that some of the defendants deprived the plaintiff of meals or tampered with his meals. The material allegations in the amended complaint can be summarized as follows.
On February 3, 2006, defendants Walters and McCoy threatened the plaintiff. Defendant McCoy told the plaintiff that he would make sure that the plaintiff was buried here and that the plaintiff would never get out of the RHU (restricted housing unit). Defendants McCoy and Walters also told the plaintiff that they would starve him. Defendant Walters told the plaintiff: "If 1 find my daughter's picture in your property, I'll come back here to your cell and kill you myself, and you'll be dead before I leave." The threats occurred when the defendants were escorting the plaintiff to the security office so that the plaintiff could either destroy or send home his excess property. The defendants had a problem with the plaintiff's selection of pornographic magazines and photographs of plaintiff's family and friends. They accused the plaintiff of being a pedophile or pervert. The plaintiff took offense because he never possessed any child pornography or illegal sexual material and he has no record of sexual charges. The accusation that the plaintiff is a pedophile or pervert started a campaign of terrorism, starvation and intimidation by defendants Walters and McCoy against the plaintiff
On February 12, 2006, defendant Angelovic denied the plaintiff a supper tray. Defendant Dwyer witnessed the denial and the plaintiff told him that he was a witness and that he was putting it on paper. Defendant Angelovic told the plaintiff that he would be getting plenty of paperwork. Later that evening, the plaintiff received a misconduct report accusing him of having his cell light covered. The misconduct report indicated that that is why the plaintiff did not receive a food tray and the report accused the plaintiff of cursing. On the misconduct report defendant Angelovic accused the plaintiff of using almost the exact same curse that the plaintiff had used in his letter to his son. The plaintiff alleges that his cell light was not covered and that he did not curse.
On numerous occasions, defendant corrections officers denied the plaintiff meals, provided the plaintiff with only partial meals or otherwise tampered with the plaintiff's food.
On February 15, 2006, defendant Angelovic flushed the plaintiff's pen down the toilet and told the plaintiff to cut his throat and write with his blood.
On March 18, 2006, defendant McCoy asked the plaintiff what he was in prison for and the plaintiff responded that he was in for murder. Defendant McCoy stated that he had been looking at some strange web sites the night before and that he had read the plaintiff's file. He said the plaintiff had raped some women, killed them and put rosary beads on their bodies. The plaintiff stated that he did not rape or kidnap anyone but that he was convicted in 1989 of a bizarre murder. Defendant McCoy called the plaintiff a "child molesting scum bag."
On March 19, 2006, the plaintiff heard defendant McCoy give some paperwork about the plaintiff to another inmate for the inmate to read. The plaintiff alleges that it is a common ploy for guards to get information about a prisoner they don't like and give it to other inmates so that the other inmates harass the prisoner that the guards have it in for.
On March 19, 2006, defendants McCoy and McDermott deprived the plaintiff of his lunch tray, bread and beverage. Later, the plaintiff received a misconduct report from defendant McDermott accusing him of throwing his beverage cup on the floor and cursing him. The plaintiff did not do anything but he received 90 more days in the RHU. As a result of the misconduct, the plaintiff was placed on a "modified menu" and was to receive only sandwiches. Most days, however, guards denied him the sandwiches or took the meat out of the sandwiches and just gave him the bread. He ate basically bread and water for approximately ten days.
On March 28, 2006, defendant Walters denied the plaintiff a lunch tray. The plaintiff told defendants Werts that he was a witness to the denial and that he is putting it on paper. The plaintiff spoke to defendants Buck and Rapson but they ignored him as did defendants Walters, Werts and Wilk. The plaintiff, however, "read them all the riot act" and stated that they were abusing prisoners by denying them food.
After lunch on March 28, 2006, defendants Buck, Werts and Wilk moved the plaintiff to a cell on the other side of the block. The plaintiff was not told why he was moved, but defendant Buck told him: "Do it again and we beat your ass." Shortly thereafter, the plaintiff was served with a misconduct report in which he was accused of cursing and threatening defendant Walters. He was accused of charging his cell door and telling defendant Walters to get the food tray out of the slot or he would cut his throat. The allegations in the misconduct were false and the misconduct was issued in order to further abuse the plaintiff and have him moved to another cell. As a result of the misconduct, the plaintiff received an additional 180 days in the RHU and was placed on food loaf for seven days. The plaintiff alleges that this was defendant Walters' intention all along.
On April 11, 2006, defendants Walters and Corbett entered the plaintiff's cell and brutally beat him about the head and body, risking his life. Defendant Wilk arrived and witnessed the beating right before it stopped. The plaintiff had cuts, lumps, swelling and bruising as a result of the assault. The plaintiff alleges that, due to the punches to his head, he still can not think straight.
Defendant Hennigan, a nurse, looked over the plaintiff after the assault and said that he would tell the doctor that he should be seen soon due to the severity of the assault. However, the plaintiff did not see defendant Bohinski until 26 hours after the assault. Although the plaintiff reported to defendant Bohinski that he had been punched at least two dozen times in the head, defendant Bohinski did not admit the plaintiff for medical observation or send him for a CT Scan or MRI to check for brain swelling or head injury. The plaintiff alleges that his head was sore for a week after the beating and that he could have died or had a ruptured spleen or other unnoticed physical trauma not detectable by a cursory medical examination. The plaintiff was dismissed with no medication for pain and no ice for swelling. However, defendant Bohinski did order x-rays of the plaintiff's right hand and elbow. The plaintiff asked defendant Bohinski for a cranial x-ray. Defendant Bohinski said he would order a head x-ray but one was not ordered.
On July 28, 2006, defendants Walters, McCoy, Angelovic, Boberski, Corbett, McDermott, Olszyk, Buck, Wickiser, Wynder, Dwyer, Wefts, Wilk, Yetter, Rapson, Lucas, Cicerchia, Pall, Munoz, Hennigan, and Sromovski, referred to here as the corrections defendants, filed a motion to dismiss less that all of the plaintiff's amended complaint. On August 3, 2006, the corrections defendants filed a brief in support of their motion to dismiss. On September 6, 2006, the plaintiff filed a brief in opposition to the corrections defendants' motion to dismiss. The corrections defendants have not filed a reply brief.
On September 5, 2006, defendant Bohinski filed a motion to dismiss the amended complaint and a brief in support of that motion. On September 5, 2006, the plaintiff filed a brief in opposition to defendant Bohinski's motion to dismiss, and on September 26, 2006, defendant Bohinski filed a reply brief in support of his motion to dismiss.
A motion to dismiss pursuant to Rule 12(b)(6) challenges the legal sufficiency of the plaintiff's complaint; the court must decide whether, even if the plaintiff were able to prove all of his allegations, he would be unable to prevail. Mortensen v. First Fed. Sav. & Loan Assn, 549 F.2d 884, 891 (3d Cir.1977). In connection with a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the burden is on the moving party to show that there is no actionable claim. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir.1980). When deciding a motion to dismiss, the court must accept all material allegations of the complaint as true and draw all inferences in the light most favorable to the plaintiff. Pennsylvania House, Inc. v. Barrett, 760 F.Supp. 439, 449 (M.D.Pa.1991). However, "conclusory allegations of law, unsupported conclusions and unwarranted inferences need not be accepted as true." Id. at 449-50. A complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 44-46 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). Furthermore, pro se civil rights complaints are to be construed liberally. Haines v. Kerner, 404 U.S. 519 (1972).
The corrections defendants contend: 1) that they are entitled to Eleventh Amendment immunity from the plaintiff's claims against them in their official capacities for monetary damages; 2) that the amended complaint fails to state an access to the courts claim upon which relief can be granted; 3) that the amended complaint fails to state a claim upon which relief can be granted based on the plaintiff's allegations that they threatened and verbally harassed him; 4) that the plaintiff's allegations that defendants Angelovic, McDermott and Dwyer filed false misconducts against him fail to state a claim upon which relief can be granted; 5) that the amended complaint fails to state a claim upon which relief can be granted against defendants Lucas and Wickiser based on their alleged failure to properly investigate the plaintiff's grievances; 6) that the plaintiff's allegations that the defendants read and tampered with his non-privileged mail fail to state a claim upon which relief can be granted; 7) that the plaintiff's allegations regarding being transferred to a different cell fail to state a claim upon which relief can be granted; and 8) that the plaintiff's allegations regarding being denied toilet paper fail to state a claim upon which relief can be granted. We address these contentions seriatim.
The corrections defendants contend that they are entitled to Eleventh Amendment immunity from the plaintiff's claims against them in their official capacities for monetary damages.
The plaintiff's claims for monetary damages against the correction defendants in their official capacities are barred by the Eleventh Amendment. Claims against these defendants in their official capacities for prospective injunctive relief and claims against these defendants in their individual capacities for monetary damages are not barred by the Eleventh Amendment.
The plaintiff alleges that on February 15, 2006, defendant Angelovic flushed his pen down the toilet and told him to cut his throat and write with his blood.
The corrections defendants contend that the allegations in the amended complaint with regard to the pen fail to state an access to the courts claim upon which relief can be granted because the plaintiff has not alleged that he was actually denied access to a court.
Inmates have a right of access to the courts. Lewis v. Casey, 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817 (1977). In order to succeed on an access to the courts claim an inmate must establish actual injury. Lewis, supra, 518 U.S. at 351.
The plaintiff has not alleged that due to his pen being flushed down the toilet he was unable to file or litigate a case in court. Therefore, the plaintiff has failed to allege that his right of access to the courts was injured. Accordingly, the plaintiff fails to state an access to the courts claim upon which relief can be granted.
We note that in his brief the plaintiff states that he was denied access to the courts when he was not allowed to make a "legal run" to his property to secure legal papers and attorney addresses. He states he was prevented from filing necessary documents and that his veterans benefits case which is in the appeals court may have suffered irreparable harm as a result. Those statements, however, are not made as allegations in the amended complaint, and, therefore, we do not consider them in connection with the corrections defendants' motion to dismiss. We will, however, recommend that the plaintiff be granted leave to file a second amended complaint to attempt to plead an access to the courts claim upon which relief can be granted. See Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.2000)(concluding that leave to amend must be given if deficiencies in a complaint could be cured by amendment).
The corrections defendants contend that the plaintiff's allegations that they threatened him and verbally harassed him fail to state a claim upon which relief can be granted.
Mere words spoken to a prisoner by a correctional officer, even when those words are harsh, do not amount to a violation of the prisoner's civil rights by the officer. Johnson v. Glick, 481 F.2d 1028, 1033 n. 7 (2d Cir.1973); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979)(verbal harassment by threatening to hang an inmate is not sufficient to state a constitutional deprivation under § 1983). "Standing alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws." Dewalt v. Carter, 224 F.3d 607, 612 (7th Cir.2000). Accordingly, it will be recommended that the plaintiff's claim against the corrections defendants based on threats and verbal abuse be dismissed. We note, however, that, although not independently actionable, the statements allegedly made by the defendants may be relevant to some of the plaintiff's other claims.
Mere allegations of falsified misconduct reports, without more, are not enough to state a due process claim upon which relief may be granted. Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir.2002).
We agree with the corrections defendants that the plaintiff's allegations that defendants Angelovic, McDermott and Dwyer filed false misconducts against him fail to state a due process claim upon which relief can be granted.
We note, however, that the plaintiff argues in his brief that the misconduct reports were issued as retaliation.
Issuing a false misconduct in retaliation for a prisoner's exercise of his First Amendment rights implicates the First Amendment. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003). A prisoner claiming that prison officials have retaliated against him for exercising his constitutional rights must prove that: 1) the conduct of which he was engaged was constitutionally protected; 2) he suffered "adverse action" at the hands of prison officials; and 3) his constitutionally protected conduct was a substantial or motivating factor in the decision of the defendants. Carter v. McGrady, 292 F.3d 152, 158 (3d Cir.2002).
In the instant case, the plaintiff has not alleged in his amended complaint that the misconducts were issued in retaliation for the exercise of his constitutional rights. Nor has the plaintiff alleged facts which could reasonably be construed to lead to an inference that the misconducts issued by defendants Angelovic, McDermott and Dwyer were issued in retaliation for the plaintiff's exercise of his constitutional rights. The amended complaint fails to provide the defendants fair notice that he is attempting to state a retaliation claim based on the misconducts issued by defendants Angelovic, McDermott and Dwyer. Accordingly, we conclude that the amended complaint fails to state a retaliation claim upon which relief can be granted based on the misconducts issued by defendants Angelovic, McDermott and Dwyer. We will recommend, however, that the plaintiff be granted leave to file a second amended complaint to attempt to plead a retaliation claim upon which relief can be granted based on the misconducts issued by defendants Angelovic, McDermott and Dwyer.
The plaintiff alleges that he filed numerous grievances and that defendants Lucas and Wickiser ignored his grievances and/or refused to believe the plaintiff.
The corrections defendants contend that the amended complaint fails to state a claim upon which relief can be granted against defendants Lucas and Wickiser based on their alleged failure to properly investigate his grievances.
Inmates do not have a constitutionally-protected right to a grievance procedure and a state grievance procedure does not confer any substantive constitutional right upon prison inmates. Flick v. Alba, 932 F.2d 728, 729 (8th Cir.1991); Hoover v. Watson, 886 F.Supp. 410, 418 (D.Del.1995), aff'd, 74 F.3d 1226 (3d Cir.1995). Thus, "[i]f the state elects to provide a grievance mechanism, violations of its procedures do not deprive prisoners of federal constitutional rights." Spencer v. Moore, 638 F.Supp. 315, 316 (E.D.Mo.1986).
The plaintiff alleges that on February 6, 2006, he gave a letter to defendant Angelovic who was collecting mail. He alleges that the letter was addressed to one of his children and was unsealed because there was a check request inside. He alleges that an hour later, defendant Angelovic and two other guards came to his cell door and verbally harassed him. He alleges that defendants Angelovic, Walters and McCoy insulted him with names that were in the letter and that it was obvious that they had read his letter to his son. The plaintiff alleges that his son never received the letter or check.
The corrections defendants contend that the plaintiff's allegations that they read and tampered with his non-privileged mail fail to state a claim upon which relief can be granted.
In Procunier v. Martinez, 416 U.S. 396 (1974), the Untied States Supreme Court considered the constitutionality of prison regulations that restricted the personal correspondence of prison inmates. The regulations at issue authorized censorship of statements that "unduly complain" or "magnify grievances," expression of "inflammatory political, racial, religious or other views," and matter deemed "defamatory" or "otherwise inappropriate." Id. at 415. The Court held that censorship of prisoner mail is justified if the following criteria are met:
In Turner v. Salley, 482 U.S. 78 (1987), the United States Supreme Court considered the constitutionality of a prison regulation that forbade communication between inmates at different institutions. The Court upheld the regulation. However, the Court did not use the standard set forth in Martinez. Rather, the Court held that a prison regulation which impinges on an inmate's constitutional rights is valid as long as it is reasonably related to legitimate penological interests. Id. at 89.
Since the decision in Turner, both the Supreme Court and the Third Circuit have generally recognized the standard set forth in Turner as the applicable standard in prisoners' constitutional rights cases. Nasir v. Morgan, 350 F.3d 366, 370-71 (3d Cir.2003). "Nevertheless, in Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (D.C.Cir. 1989), the Supreme Court narrowly construed Turner's impact on Martinez." Id. at 371.
In Thornburgh, the Court applied the Turner standard and upheld a prison regulation governing the receipt of subscription publications. 490 U.S. at 419. The Court gave Turner and Martinez narrow readings to minimize the conflict between the cases. Nasir, supra, 350 F.3d at 371. The Court in Thornburgh read Martinez as not requiring a "least restrictive means" test:
490 U.S. at 411 (footnote omitted). The Court in Thornburgh also limited Martinez to regulations dealing with outgoing correspondence by prisoners:
Id. at 413.
In the instant case, the plaintiff alleges not only that the defendants read his letter to his son but that his son did not receive his letter. A reasonable inference from the allegation that the son did not receive the letter is that the defendants did not send the letter. Construing these allegations liberally we conclude that the plaintiff states a First Amendment claim upon which relief may be granted.
We note that the defendants cite to an unpublished Third Circuit decision—Alexander v. Gennarini, 144 Fed.Appx. 924 (3d Cir.2005)—for the proposition that a single instance of damaged or withheld mail does not constitute a First Amendment violation. In Alexander, a prisoner alleged that the defendants delayed delivery of a package that had been sent to him. Id. at 925. The Third Circuit upheld the district court's dismissal of the complaint. Id. As to the First Amendment claim, the court indicated that "a single instance of damaged or withheld mail does not constitute a First Amendment violation." Id. at 926.
Since the decision in Alexander is not published it is not binding on this court. Moreover, Alexander is distinguishable from this case. Alexander dealt with a delay of a prisoner's incoming mail. This case, in contrast, deals with outgoing mail. Moreover, the plaintiff alleges more than just a delay in sending the letter; he alleges that his son never received the letter.
The plaintiff alleges that on March 28, 2006, defendant Walters denied the plaintiff a lunch tray. He alleges that he told defendant Werts that he was a witness to the denial and that he is putting it on paper and that he spoke to defendants Buck and Rapson but they ignored him as did defendants Walters, Werts and Wilk. He alleges however that he "read them all the riot act" and stated that they were abusing prisoners by denying them food. He alleges that after lunch on March 28, 2006, defendants Buck, Werts and Wilk moved the plaintiff to a cell on the other side of the block and that shortly thereafter he was served with a misconduct report in which he was accused of cursing and threatening defendant Walters. He alleges that he was accused of charging his cell door and telling defendant Walters to get the food tray out of the slot or he would cut his throat. The plaintiff alleges that the allegations in the misconduct were false and that the misconduct was issued in order to further abuse him and have him moved to another cell. He alleges that as a result of the misconduct he received an additional 180 days in the RHU and was placed on food loaf for seven days. The plaintiff alleges that this was defendant Walters intention all along.
"It is well established that the decision where to house inmates is at the core of prison administrators' expertise." McKune v. Lile, 536 U.S. 24, 39 (2002). An inmate does not have a due process right to remain in or be transferred to any particular prison. See Meachum v. Fano, 427 U.S. 215, 225 (1976). An inmate also does not have a due process right not to be transferred to another cell within in a prison unless such a transfer would impose an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
The plaintiff has not alleged that his transfer to another cell on March 28, 2006 imposed an atypical and significant hardship on him in relation to the ordinary incidents of prison life, nor has the plaintiff alleged facts from which it could reasonably be inferred that the transfer to another cell on March 28, 2006 imposed an atypical and significant hardship on him in relation to the ordinary incidents of prison life. Accordingly, the plaintiff fails to state a due process claim upon which relief can be granted based on his transfer to another cell on March 28, 2006.
The plaintiff, however, asserts in his brief in opposition to the defendants' motion to dismiss that he was moved to a different cell in retaliation for voicing his opinion that the guards were abusing the inmates. Although the plaintiff does not specifically allege in his amended complaint that he was transferred to another cell in retaliation for speaking up about what he perceived to be abuse, he does allege he was moved after he read the defendants the riot act and stated that they were abusing prisoners by denying them food. The plaintiff also alleges that the move to the other cell was followed by the issuance of a false misconduct which was issued in order to further abuse him and have him moved to another cell. Transferring a prisoner and issuing a false misconduct in retaliation for a prisoner's exercise of his First Amendment rights implicates the First Amendment. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003). Construing the allegations of the amended complaint in the light most favorable to the plaintiff, as we must when deciding a motion to dismiss, we conclude that the amended complaint states a retaliation claim upon which relief may be granted based on the cell transfer on March 28, 2006.
The plaintiff alleges that on February 18, 2006 defendant Walters denied him a roll of toilet paper, that on February 22, 2006 he received a roll of toilet paper, and that on February 23, 2006 and March 12, 2006 defendant McCoy denied him a roll of toilet paper. The plaintiff also alleges that he was denied yard and showers for thirty-five days straight and that the number of occasions on which defendants Walters and McCoy denied him basic necessities are too numerous to mention.
The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986). Unnecessary and wanton inflictions of pain include those that are totally without penological justification. Hope v. Pelzer, 536 U.S. 730, 737 (2002). Conditions which inflict needless suffering, whether physical or mental, may constitute cruel and unusual punishment. Tillery v. Owens, 719 F.Supp. 1256, 1275 Pa. 1989, aff'd, 907 F.2d 418 (3d Cir.1990).
Punishment is cruel and unusual only if it is "unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe it serves any penal purpose more effectively than some less severe punishment." Rhodes v. Robinson, 612 F.2d 766, 774 (3d Cir.1979) (quoting Furman v. Georgia, 408 U.S. 238, 282 (1972) (Brennan, J., concurring)).
Eighth Amendment claims involve a two prong analysis. Eighth Amendment claims must satisfy both an objective component (the deprivation must be sufficiently serious) and a subjective component (the defendant must have been deliberately indifferent). Young v. Quinlan, 960 F.2d 351, 359-60 (3d Cir.1992). As to the objective component, the Eighth Amendment is violated only when an inmate is deprived of "the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). As to the subjective component, the question is whether the prison official acted with deliberate indifference to the inmate's health or safety. Hudson v. McMillian, 503 U.S. 1, 8 (1992). "[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994). "We may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious." Hope, supra, 536 U.S. at 738.
The length of time a prisoner is subjected to harsh conditions is a critical factor in an Eighth Amendment analysis. Smith v. Copeland, 87 F.3d 265, 269 (8
Although the denial of toilet paper on two occasions may not rise to the level of an Eighth Amendment violation, in the instant case the plaintiff alleges more than that he was denied toilet paper on two occasions. The plaintiff also alleges that he denied yard and showers for thirty-five days straight and that defendants Walters and McCoy denied him basic necessities on numerous occasions. We conclude that the amended complaint states an Eighth Amendment conditions of confinement claim upon which relief may be granted.
In order for the plaintiff to state a viable Eighth Amendment medical claim he must allege that the defendant acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976).
Defendant Bohinski contends that the amended complaint fails to state an Eighth Amendment claim against him upon which relief can be granted because the plaintiff has not alleged that he suffered from a serious medical need.
The concept of serious medical need has two components, one relating to the consequences of a failure to treat and the other relating to the obviousness of those consequences. Colburn v. Upper Darby Twa. 946 F.2d 1017, 1023 (3d Cir.1991). The condition must be such that a failure to treat can be expected to lead to substantial and unnecessary suffering, injury or death. Id. Also, the condition must be one that has been diagnosed by a doctor as requiring treatment or one that is so obvious that a lay person would easily recognize the need for a doctor's attention. Id.
The plaintiff does not allege that he suffered from any specific-named disease or injury. However, the plaintiff does allege that he was punched at least two dozen times in the head, that he had cuts, lumps, swelling and bruising as a result of the assault and that he still can not think straight. We can not say as a matter of law at this point that the plaintiff will not be able to establish that he had a serious medical need when he was seen by defendant Bohinski.
Defendant Bohinski contends that the amended complaint fails to state an Eighth Amendment claim against him upon which relief can be granted because the plaintiff has not alleged that he knew that his conduct presented a substantial risk of serious harm to the plaintiff and because the plaintiff alleges nothing more than a disagreement of opinion as to the appropriate course of medical treatment.
The plaintiff alleges that despite telling defendant Bohinski that he had been punched a least two dozen times in the head, defendant Bohinski conducted only a cursory examination and did no tests for brain swelling or
Michael Tyrone McCullon, Springfield, MO, pro se.
On December 20, 2010, the Defendants filed a motion to dismiss these complaint, or in the alternative for summary judgment. (Doc. 37.) Having received this motion, we set a briefing schedule in this case, which required the Defendants to file a brief in support of this motion on January 3, 2011, and directed McCullon to file a brief in opposition to the motion no later than January 17, 2011. (Doc. 39.)
The Defendants complied with this order by filing a brief and related documents in this case on January 3, 2011. (Docs.44-45.) While McCullon initially submitted a letter indicating that he received his December 20, 2010, legal mail in this case on December 27, 2010, (Doc. 43), he failed to file a response to this motion, as required by the Court's December 20, 2010 briefing schedule order. After three weeks elapsed without a response from McCullon, we deemed briefing to be closed in this case, considered this motion ripe for resolution, and issued a report and recommendation in this matter. (Doc. 49.) McCullon then belatedly responded to the Court, filing objections and seeking further opportunities to litigate these issues. (Docs.50-53.)
The district court granted McCullon this opportunity to further present his claims. (Doc. 54.) We then withdrew our earlier report and recommendation and set a schedule for McCullon to brief this motion. (Doc. 55.) That briefing is now completed, (Docs.56-61), and this motion is ripe for resolution.
For the reasons set forth below it is recommended that the Defendant's motion to dismiss, or in the alternative for summary judgment, be granted, in part, and denied, in part. Specifically, it is recommended that McCullon's complaints be dismissed as to Defendants, Bledsoe, Perrin, Raup and Fosnot, but that the motion be denied as to Defendants Brouse, Stuart, Johnson and Sassaman since disputed material factual issues exist which preclude judgment for these Defendants at this time.
While all parties agree that these acts occurred, there is a dispute regarding how these events were perceived and each party insists that these events were perceived in strikingly different ways. For his part, Officer Brouse saw McCullon's acts as an attempted assault, and believed that McCullon was attempting to strike out at him. McCullon, in turn, denies trying to assault the officer in any way, while admitting that he threw these articles into the cellblock corridor.
Officer Brouse responded to McCullon's actions by slamming the wicket slot door closed until it could be locked. While all parties agree that the wicket slot door was forcibly closed, they dispute the effect of this action on McCullon. McCullon insists that Brouse slammed the door shut on his hand, breaking and disfiguring his finger. It is unclear on the present record whether Officer Bourse admits or denies that McCullon's finger was injured during the securing of the wicket slot door.
McCullon was, however, subsequently removed from the cell by prison staff including Lieutenant Stuart. (Id.) While the parties agree that McCullon was removed from this cell on August 19, 2009, they disagree regarding how that move was accomplished. For his part, McCullon insists that correctional officials ignored his complaints of pain, and placed him in painfully tight hand restraints, needlessly inflicting pain upon him given his injured hand while they moved him. (Id.) In stark contrast, Lieutenant Stuart described the cell extraction in the following terms: "[McCullon] was placed in clean clothes, metal detected and ambulatory restraints were applied in cell 218. He was then moved to cell 204, where he was medically assessed. During the assessment it was noted that the inmate had sustained an injury to one of his fingers. This injury was not a result of the move and it is unclear at this time as to how the inmate sustained the injury. He was moved to the medical evaluation room where treatment for the injury of his finger was accomplished. He was then placed back in cell 204 without incident." (Doc. 44, ¶ 55.)
McCullon remained confined in cell 204, in ambulatory restraints, for approximately twenty-four hours, until the afternoon of August 20, 2009. (Doc. 44, ¶ 80.) While the parties agree regarding the duration of these restraints, they dispute the conditions under which McCullon was restrained. The Defendants insist that McCullon received regular medical examinations and treatment, and his health was carefully monitored during this period. McCullon contends that he was in great pain, and his complaints of pain were ignored by Defendants Sassaman and Johnson for a full day.
McCullon protested this disciplinary outcome to prison officials, while also complaining that staff had assaulted him on August 19, 2009. Special investigative staff at the prison, including Defendants Fossnot, Breese and Perrin, examined these allegations, but discounted McCullon's claims. Warden Bledsoe also declined to act favorably upon any of McCullon's claims or contentions.
Defendants have framed their motion as one seeking dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Rule 56. When a party moves to dismiss, but where "matters outside the pleadings are presented to and not excluded by the court, the motions shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(d). Typically, when a court converts a motion to dismiss into a motion for summary judgment under Rule 56, notice must be given to all parties of the court's intent to do so. Id.; Garcia v. Newtown Twp., No. 09-CV-3809, 2010 U.S. Dist. LEXIS 20380, 2010 WL 785808, at *3 (E.D.Pa. March 5, 2010). However, if a motion to dismiss has been filed with an alternative request for summary judgment, the Court of Appeals of the Third Circuit has found that the alternative filing is sufficient to "place the parties on notice that summary judgment might be entered." Latham v. United States, 306 F. App'x 716, 718 (3d Cir.2009) (citing Hilfirty v. Shipman, 91 F.3d 573, 578-79 (3d Cir.1996)). Accordingly, we find that it is appropriate to treat Defendants' motion as one for summary judgment, and we find further that Plaintiff has responded to the motion accordingly.
Rule 56(c) provides that judgment should be rendered if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material facts and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2); see also Davis v. Mountaire Farms, Inc., 453 F.3d 554, 556 (3d Cir.2006) (summary judgment appropriate only if there are no genuine issues of material fact). In considering a motion for summary judgment, a court must view the evidence and draw all inferences in the light most favorable to the non-moving party, id., and may grant summary judgment only if no reasonable juror could find for the non-movant, Matsushita Elec. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
For example, supervisory liability will rest on the basis that supervisors maintained deficient policies that resulted in the Plaintiff sustaining an Eighth Amendment injury. In these kinds of cases based upon allegations of deficient policies, the Third Circuit has fashioned a four-part test based upon the reasoning of City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), for supervisory liability on an Eighth Amendment claim for failure to supervise. Under this test, "the plaintiff must identify a specific policy or practice that the supervisor failed to employ and show that: (1) the existing policy or practice created an unreasonable risk of the Eighth Amendment injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (3) the injury resulted from the policy or practice." Beers-Capitol, 256 F.3d at 134 (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.1989). Accordingly, these approaches are summarized as follows:
In sum, to make out a claim of deliberate indifference based on direct liability (i.e., insofar as the defendants are alleged to have known of and ignored the particular risk that [was] posed, the plaintiff's must meet the test from Farmer v. Brennan: They must show that the defendants knew or were aware of and disregarded an excessive risk to the plaintiffs' health or safety, and they can show this by establishing that the risk was obvious. For the plaintiffs' claims seeking to hold supervisors liable for their deficient policies, Sample's four-part test provides the analytical structure for determining whether the policymakers exhibited deliberate indifference to the plaintiffs' risk of injury, it being simply the deliberate indifference test applied to the specific situation of a policymaker.
Id.
In this setting the Third Circuit has noted that, in order to defeat a motion for summary judgment, a plaintiff alleging deliberate indifference on the part of prison officials "must present enough evidence to support the inference that the defendants knowingly and unreasonably disregarded an objectively intolerable risk of harm." Id. at 132. McCullon's pleadings plainly do not meet this stringent standard of proof. They simply do not allege a constitutionally deficient policy or practice at the prison.
Furthermore, it is equally clear that a claim of a constitutional deprivation cannot be premised merely on the fact that the named Defendant was the prison warden, or a prison supervisor, when the incidents set forth in the complaint occurred. Quite the contrary, to state a Bivens constitutional tort claim the plaintiff must show that the supervisory defendants actively deprived him of a right secured by the Constitution. Morse v. Lower Merlon School Dist., 132 F.3d 902 (3d Cir.1997); see also Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Constitutional tort liability is personal in nature and can only follow personal involvement in the alleged wrongful conduct shown through specific allegations of personal direction or of actual knowledge and acquiescence in the challenged practice. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir.1997).
"A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988).
Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005).
As the Supreme Court has observed:
Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. . . . See Monell v. New York Citl-Lic Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (finding no vicarious liability for a municipal "person" under 42 U.S.C. § 1983); see also Dunlop v. Munroe, 7 Cranch 242, 269, 3 L.Ed. 329 (1812) (a federal official's liability "will only result from his own neglect in not properly superintending the discharge" of his subordinates' duties); Robertson v. Sichel, 127 U.S. 507, 515-516, 8 S.Ct. 1286, 3 L.Ed. 203 (1888) ("A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties"). Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution
Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009).
Applying these benchmarks, courts have frequently held that, in the absence of evidence of supervisory knowledge and approval of subordinates' actions, a plaintiff may not maintain an action against supervisors based upon the misdeeds of their subordinates. O'Connell v. Sobina, No. 06-238, 2008 WL 144199, *21 (W.D.Pa. Jan.11, 2008); Neuburger v. Thompson, 305 F.Supp.2d 521, 535 (W.D.Pa.2004).
Nor can inmates, like McCullon, sustain Eighth Amendment claims against prison officials based solely upon assertions that those officials failed to adequately investigate their past grievances. Inmates do not have a constitutional right to a prison grievance system. See Jones, 433 U.S. at 137-138; Speight v. Sims, No. 08-2038, 283 F. App'x 880, 2008 WL 2600723 at *1 (3d. Cir. June 30, 2008) (citing Massey v. Heiman, 259 F.3d 641, 647 (7th Cir.2001) ("[T]he existence of a prison grievance procedure confers no liberty interest on a prisoner."). Consequently, dissatisfaction with response to an inmate's grievances does not support a constitutional claim. See also Alexander v. Gennarini, 144 F. App'x. 924 (3d Cir.2005) (involvement in post-incident grievance process not a basis for 1983 liability); Pryor-El v. Kell 892 F.Supp. 261 275 (D.D.C.1995) (because prison grievance procedure does not confer any substantive constitutional rights upon prison inmates, the prison officials' failure to comply with grievance procedure is not actionable). See also Cole v. Sobina, No. 04-99J, 2007 WL 4460617, at *5 (W.D.Pa. Dec.19, 2007) ("[M]ere concurrence in a prison administrative appeal process does not implicate a constitutional concern."). As the United States Court of Appeals for the Third Circuit recently observed when disposing of a similar claim by another inmate:
Pressley v. Beard, 266 F.App'x 216, 218 (3d Cir.2008).
In this case, fairly construed, McCullon's claims against Defendants Bledsoe, Perrin and Fosnot consist of little more than assertions of respondeat superior liability, coupled with dissatisfaction with their processing of this inmate's past grievances, assertions which as a matter of law do not suffice to state a constitutional tort claim. Therefore, these Defendants are entitled to be dismissed from this case.
In his complaints, McCullon also seeks to hold another correctional defendant, Correctional Officer Richard Raup, personally liable to him. The basis for McCullon's claims against Officer Raup can be simply stated: Raup was an officer who observed the August 19, 2009, dust-up between McCullon and Defendant Brouse. He then prepared a report describing what he saw in this affray and was, thus, a witness in the disciplinary proceedings brought against McCullon, which resulted in disciplinary sanctions being leveled against this inmate. McCullon contends that Officer Raup's report, which served as his testimony at the disciplinary hearing, was false, and on the basis of this bald assertion seeks hold him personally liable for damages.
In bringing constitutional claims against a correctional officer arising out of testimony or report at a prison disciplinary hearing, McCullon faces an exacting burden of proof. It is well established that "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The Supreme Court has, however, recognized a set of minimum procedural protections that must apply to prison disciplinary proceedings, including the right to: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety or correctional goals, to call witnesses and present documentary evidence as part of a defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Id. at 563-67.
Hill, 472 U.S. at 455-456.
Provided that a prisoner is afforded these due process protections during the disciplinary hearing process, it is well-settled that a claim that a misconduct report was false, standing alone, does not state a valid Bivens cause of action. As the United States Court of Appeals for the Third Circuit has aptly observed: "[F]iling false disciplinary charges does not itself violate a prisoner's constitutional rights, so long as procedural due process protections were provided. See e.g., Freeman v. Rideout, 808 F.2d 949, 952-53 (2d Cir.1986) (the filing of false charges does not constitute a claim . . . so long as the inmate was granted a hearing and an opportunity to rebut the charges); Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir.1984)." Richardson v. Sherrer, 344 F. App'x 755, 757-758 (3d Cir.2007). See also Booth v. Pence, 141 F. App'x 66 (3d Cir.2007); Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir.2002).
These principles also directly apply to inmate retaliation claims stemming from prison disciplinary proceedings. A prisoner claiming that prison officials have retaliated against him for exercising his constitutional rights must prove the following three elements: (1) the conduct in which he engaged was constitutionally protected; (2) he suffered adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial motivating factor in the defendants' conduct. Carter v. McGrady, 292 F.3d 152, 158 (3d Cir.2002). With respect to the obligation to demonstrate that he suffered an adverse action, a plaintiff must demonstrate that he suffered action that "was sufficient to deter a person of ordinary firmness from exercising his rights." Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.2000). While filing false misconduct reports may constitute the type of action that will, in certain cases, support a retaliation claim, Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003), in a prison discipline context, an inmate's retaliation claim fails whenever the defendant shows that there is "some evidence" to support the discipline citation. As the United States Court of Appeals for the Third Circuit has observed: "[an inmate's] retaliatory discipline claim fails [when] there is `some evidence' supporting the guilty findings. . . . See Henderson v. Baird, 29 F.3d 464, 469 (8th Cir.1994) (stating that a finding of `some evidence' to support a prison disciplinary determination `checkmates' the prisoner's retaliation claim)." Nifas v. Beard, 374 F. App'x 241, 244 (3d Cir.2010).
These principles control here and compel dismissal of McCullon's claims against Defendant Raup. Since, "filing false disciplinary charges does not itself violate a prisoner's constitutional rights, so long as procedural due process protections were provided," Richardson v. Sherrer, 344 F. App'x 755, 757-758 (3d Cir.2007) and it is also well-settled that "[b]oth Pennsylvania law and federal law command this result [that witnesses are immune from civil liability for testifying]," Hoffman v. Rashid, 388 F. App'x. 121, 122-23 (3d Cir.2010), McCullon's claims against Defendant Raup, which are premised solely on his allegedly false disciplinary report statements or testimony, also fail.
Furthermore, Defendants insist that, to the extent that McCullon seeks to sue prison officials for imposing punishment on him for a rules infraction, punishment that extended the duration of his incarceration, the "favorable termination" doctrine may bar such claims. The favorable termination doctrine was first framed by the Supreme Court Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), where the Court concluded that a prisoner does not have a civil rights cause of seeking damages where success in the suit would effectively invalidate the prisoner's underlying conviction and sentence. In reading this result, the Court adopted a "favorable termination rule" which provided that if the success of the damages action "would necessarily imply the invalidity of his conviction or sentence," then the inmate's claims are cognizable only if it can be proven that the conviction or sentence was reversed, invalidated, or called into question by the grant of federal habeas corpus relief Heck, 512 U.S. at 486-87. The Supreme Court subsequently applied the favorable termination rule to a state prisoner civil rights actions seeking declaratory relief and damages, like those made by McCullon here, which arise from an alleged procedural defect in the disciplinary proceedings. Edwards v. Balisok, 520 U.S. 641, 643, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). The scope of this doctrine in a prison disciplinary setting has been aptly described by the Supreme Court in Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) as follows:
Wilkinson, 544 U.S. at 81-82. Thus, while a prisoner may maintain civil damages claims for disciplinary action which relate solely to the conditions of his confinement, Torres v. Fauver, 292 F.3d 141 (3d Cir.2002), to the extent that McCullon's damages claims concern discipline which altered the duration of his confinement by disallowing good time, he may not pursue these damages claims under the "favorable termination" rule. See Wilkins v. Bittenhender, No. 06-2827, 2007 WL 708993 (3d Cir.2007).
Indeed, McCullon concedes as much in his response to this motion (Doc. 61, p. 16), and acknowledges that he may not pursue any such claims in this case. (Id.) Given this concession, the Court should decline to entertain any other claims based upon the conduct of these disciplinary hearings.
Finally, in his complaints McCullon advances various Eighth Amendment excessive force and eliberate indifference claims. Specifically, McCullon asserts that Defendant Brouse maliciously and sadistically injured him by slamming a wicket slot door shut on his finger on August 19, 2009, breaking and disfiguring his finger. McCullon further alleges that Lieutenant Stuart used excessive force in removing him from his cell following this incident, and contends that Lieutenants Johnson and Sassaman displayed deliberate indifference to his injuries and pain in the hours following this cell extraction. McCullon faces an exacting burden in advancing either of these Eighth Amendment claim against prison officials in their individual capacities since these claims require a specific showing of intent in order to demonstrate deliberate indifference, the legal touchstone for any Eighth Amendment claim.
In an excessive force case, that showing entails a very specific legal assessment. Where "prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley [v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)]: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The issue of whether excessive force was used is one which, in proper circumstances, can be determined as a matter of law. In such cases, summary judgment is only appropriate when "it appears that the evidence, viewed in the light most favorable to the plaintiff, [not] will support a reliable inference of wantonness in the infliction of pain." Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir.2000) (quoting Whitley, 475 U.S. at 322). There are several factors that a court examines in determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, 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 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 the facts known to them'; and (5) `any efforts made to temper the severity of a forceful response.'" Id. at 106.
An Eighth Amendment claim against a prison official must meet two requirements: (1) "the deprivation alleged must be, objectively, sufficiently serious;" and (2) the "prison official must have a sufficiently culpable state of mind."
Id. at 125 (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Furthermore, in cases involving prison safety or prison conditions, the relevant state of mind "is one of `deliberate indifference' to inmate health or safety." Id.
This deliberate indifference standard "is a subjective standard under Farmer—the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety." Id. Thus, "`[d]eliberate indifference can be shown when a prison official knows of and disregards an excessive risk to inmate health or safety' Hamilton v. Leavy, 117 F.3d 742, 747 (3d Cir.1997) (quotation marks omitted) (emphasis added). Accordingly, "to survive summary judgment on an Eighth Amendment claim asserted under 42 U.S.C. 1983, a plaintiff is required to produce sufficient evidence of (1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; and (3) causation." Davis v. Williams, 354 F. App'x 603, 605-606 (3d Cir.2009).
As explained in Beers-Capitol, in Eighth Amendment cases based on allegations of deliberate indifference on the part of prison officials or other supervisory defendants, the Supreme Court has "rejected an objective test for deliberate indifference; instead it looked to what the prison official actually knew rather than what a reasonable official in his position would have known." Id. at 131. Specifically, the Supreme Court "held that `a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety.'" Id. (quoting Farmer, 511 U.S. at 837). This requirement of actual knowledge on the part of supervisory officials "means that `the 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. (quoting Farmer, 511 U.S. at 837).
Here, at this early stage in the litigation, we find that the conflicting accounts of McCullon and others regarding the course of these events on August 19, 2009, at present, create a genuine dispute over material factual issues which precludes judgment as a matter of law in favor of the remaining Defendants. McCullon's evidence, if credited by a jury, could show a culpable state of mind on the part of some corrections officials. While the Defendants argue with great vigor that no reasonable fact-finder could credit this proof, we cannot at this early juncture engage in a speculative assessment of which evidence and which witnesses are more credible. That task must await another time, and another proceeding or motion. Instead where, as here, we are presented with irreconcilable factual accounts, suffice it to say that we cannot find that "there is no genuine issue as to any material facts and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). Therefore, the summary judgment motion must be denied as to these Defendants at this time.
In light of this recommended disposition of the Defendants' motion, IT IS FURTHER RECOMMENDED that McCullon's motion in opposition to the Defendants' motion to dismiss or in the alternative for summary judgment (Doc. 56), which is actually simply a response in opposition to that motion, be dismissed as moot.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
