KAROLINE MEHALCHICK, Magistrate Judge.
Plaintiff Timothy Lee Hatten ("Hatten"), proceeding pro se, is a former federal inmate incarcerated at USP Lewisburg in Union County, Pennsylvania. On January 28, 2013, Hatten initiated this action upon the filing of a fee paid complaint. (Doc. 1). In his complaint, Hatten brought a Bivens and Federal Tort Claims Act ("FTCA") action against the Federal Bureau of Prisons ("BOP"), Warden Bryan Bledsoe, and various correctional officers at USP Lewisburg. Hatten's complaint stems from events that occurred in July of 2011, while Hatten was designated to the Special Management Unit ("SMU") at USP Lewisburg.
Presently before the Court are two motions—a motion for summary judgment, filed by Defendants
Appearing through counsel, Hatten filed the complaint in this action on January 28, 2013. (Doc. 1). After a lengthy procedural history, including the disposition of Defendants' preliminary motion to dismiss and for summary judgment (Doc. 10), the District Court entered an Order adopting the report and recommendation of the undersigned magistrate judge, with additions. (Doc. 43; Doc. 55; Doc. 56). Hatten's remaining claims are thus as follows: Count I, asserting a Bivens excessive force claim against Defendant Miller; Count II, asserting a Bivens retaliation claim against Defendants Miller and Zegarski; Counts III and IV, asserting FTCA claims against the United States of America
On October 24, 2016, Defendants filed a motion for summary judgement with respect to Hatten's remaining claims. (Doc. 93; Doc. 113; Doc. 114). Hatten did not file a brief in opposition and moved for appointment of pro bono counsel on June 26, 2017. (Doc. 115). On August 11, 2017, this Court entered an Order staying the case and conditionally granting Hatten's motion for appointment of counsel. (Doc. 117). On October 26, 2017, the pro bono coordinator for the Court advised that he had secured pro bono counsel for Hatten. (Doc. 119). On November 17, 2017, counsel entered their appearance on behalf of Hatten. (Doc. 121; Doc. 122). Following a status conference on the matter, the Court ordered Hatten to file his brief in opposition to Defendants' motion for summary judgment (Doc. 93) on or before Friday, December 15, 2017. (Doc. 125). On December 12, 2016, Hatten, through his counsel, filed a motion for extension of time to file a brief in opposition, in which he outlined discovery issues that prevented him from properly responding to the motion for summary judgment. (Doc. 126). In response, the Court reopened discovery for a period of sixty (60) days, struck Defendant's motion for summary judgment without prejudice to refiling the same upon close of discovery, and set a new dispositive motion deadline. (Doc. 127).
Following the period of discovery, Defendants timely re-filed their motion for summary judgment on March 12, 2018, along with supporting documents thereof on March 26, 2018. (Doc. 130; Doc. 135; Doc. 136). Hatten subsequently moved for two extensions of time (Doc. 137; Doc. 142), which this Court granted on both occasions. (Doc. 141; Doc. 143). After the time for filing responsive documents had passed, Hatten sought leave to have his counsel withdrawn. (Doc. 146). The Court granted the motion to withdraw on June 4, 2018, and granted Hatten a final extension of time to file responsive papers to Defendants' motion for summary judgement. (Doc. 147). Specifically, the Court ordered:
On June 28, 2018, nearly two weeks after the filing deadline had passed, Hatten filed a document titled "Motion of the Plaintiff for Summary Affirmance and Stay Briefing Schedule." (Doc. 148). Hatten did not file a brief in support of this motion, as required by the Local Rules of this Court.
The pending motions before the Court (Doc. 130; Doc. 148) are now ripe for disposition.
The following factual background is largely taken from Defendants' Statement of Undisputed Material Facts. (Doc. 135). Despite being granted several extensions of time to do so, Hatten has failed to submit a statement of material fact in opposition to Defendants' motion for summary judgment, or a brief in opposition thereto. However, the Court recognizes that Hatten's Motion for Summary Affirmance and Stay seemingly includes various factual assertions. (Doc. 148; Doc. 150). Thus, in deference to Hatten's pro se status, to the extent Hatten denies Defendants' facts in the body of his motion (Doc. 148; Doc. 150) and provides supporting citations to the evidentiary record, those objections are noted.
To comply with Local Rule 56.1, a plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendants' statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3)
As such, where Hatten disputes a fact set forth by Defendants, but fails to provide a citation to the record supporting his denial, that fact will be deemed to be admitted. "Unsupported assertions, conclusory allegations, or mere suspicions" are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010); see also Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969) ("[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.").
The BOP's policy for use of force, including the application of restraints, is set forth in the BOP Program Statement ("P.S.") 5566.06. (Doc. 135, at 1, ¶ 1). The two (2) types of force are "immediate use of force," which does not require the presence or direction of a supervisor to be applied against an inmate, and "calculated use of force."
BOP Policy further provides that staff may apply restraints when necessary to gain control of an inmate who appears to be dangerous under the following scenarios: "(a) [the inmate] assaults another individual; (b) [the inmate] destroys government property; (c) [the inmate] attempts suicide; (d) [the inmate] inflicts injury upon self; or (e) [the inmate] becomes violent or displays signs of immediate violence." (Doc. 135, at 3, ¶ 9). However, BOP Policy mandates that restraint equipment or devices "may not be used. . .[i]n a matter that causes unnecessary physical pain or extreme discomfort." (Doc. 135, at 3, ¶ 13). After the application of physical restraints, staff are authorized to keep an inmate in such restraints until he or she regains self-control. (Doc. 135, at 3, ¶ 10). In the meantime, correctional staff must assess the inmate every fifteen (15) minutes and log their observations, a lieutenant must assess the inmate every two (2) hours and log his or her observations, psychology staff must assess the inmate every twenty-four (24) hours, and health services staff must check the restraints on the inmate twice every eight (8) hour shift. (Doc. 135, at 4, ¶¶ 15-18). Correctional staff are also required to complete a report detailing the incident that gave rise to the application of force, and, as soon as feasible, video tape the use of force and application of restraints. (Doc. 135, at 4, ¶ 19). "Following any incident involving the use of force (calculated or immediate) and the application of restraints [on an inmate]," an "after action review" is then performed to determine whether these measures were "reasonable and appropriate." (Doc. 135, at 4, ¶ 20).
Defendant Miller was employed as a lieutenant at USP Lewisburg from 2011 until 2014, and was responsible for supervising the correctional officers, maintaining the security of the institution, and managing the staff and inmates in crisis situations. (Doc. 135, at 6, ¶¶ 30-31). Defendant Miller had the authority to exercise immediate use of force, and initially place an inmate in ambulatory restraints. (Doc. 135, at 6, ¶ 33). However, an inmate's continued placement in physical restraints required authorization from the institution's warden. (Doc. 135, at 6, ¶ 34). With respect to using calculated force and physical restraints on an inmate, Defendant Miller also required the appropriate pre-authorization from the warden. (Doc. 135, at 7, ¶ 35). Conversely, Defendant Zegarski was a case manager at USP Lewisburg at all times relevant to Hatten's complaint. (Doc. 135, at 8, ¶¶ 47-48). Defendant Zegarski primarily prepared treatment plans for inmates, and did not have the authority to place an inmate in physical restraints. (Doc. 135, at 7-8, ¶¶ 40-45).
On July 16, 2011, while Hatten was incarcerated in Cell 316 of USP Lewisburg's I-Block, Defendant Miller accompanied other correctional officers to escort Hatten to the shower at approximately 1:30 p.m.
After obtaining warden authorization, Defendant Miller subsequently assembled a use of force team ("UFT") and escorted Hatten to USP Lewisburg's D-Block in ambulatory restraints. (Doc. 135, at 11-12, ¶¶ 66-69; Doc. 135, at 13, ¶ 76). When the UFT arrived at Cell 316 to escort Hatten, he agreed to submit to restraints, avoiding the necessity of calculated use of force. (Doc. 135, at 12, ¶ 68). However, while moving from I-block to D-block, Hatten stated that he had tripped. (Doc. 135, at 12, ¶ 70). Believing that Hatten in fact resisted his transfer, the use of force team placed Hatten onto a stretcher "for their safety and his." (Doc. 135, at 12, ¶ 72). The use of force team removed Hatten from the stretcher once he arrived at D-Block, and the calculated use of force concluded at approximately 2:29 p.m. (Doc. 135, at 12-13, ¶¶ 74-82). Upon arrival there, medical staff checked Hatten and documented that he had forced his wrist restraints up his forearms in an attempt to have staff loosen them. (Doc. 135, at 13, ¶¶ 79-81). Thereafter, Defendants assert that correctional staff, lieutenants, health services, and psychology services performed their restraint checks on Hatten in accordance with P.S. 5566.06. (Doc. 135, at 16-17, ¶¶ 98-107). After a separate assessing lieutenant
Upon the conclusion of the incident, an after-action review report found that the use of force and application of restraints on Hatten was reasonable and appropriate. (Doc. 135, at 15, ¶ 94). Hatten was subsequently issued a related incident report and subjected to disciplinary action for "interfering with a staff member, most like assault." (Doc. 135, at 15, ¶¶ 95-96). Hatten was sanctioned with the loss of 27 days of good conduct time, the imposition of 30 days in disciplinary segregation, the loss of 180 days of commissary, telephone and visiting privileges, and impoundment of his personal property for 120 days. (Doc. 135, at 15, ¶ 97).
On July 25, 2011, a similar incident involving the use of force and application of restraints occurred. Specifically, at approximately 3:00 p.m., Defendant Treibley attempted to place Hatten in restraints to take him from the video visiting room to his cell. (Doc. 135, at 17, ¶ 110). Hatten refused to be moved back to his cell and stated that he would assault his cellmate, or any other inmate he was placed in a cell with. (Doc. 135, at 17, ¶ 111). In response, Defendant Treibley called for staff assistance. (Doc. 135, at 18, ¶ 112). The responding staff observed that Hatten displayed signs of imminent violence, and requested authorization from Warden Bledsoe to assemble a UFT and apply ambulatory restraints. (Doc. 135, at 18, ¶ 113). However, when the UFT arrived, Hatten agreed to submit to restraints, thereby avoiding the necessity of forceful application of the restraints. (Doc. 135, at 18, ¶114). The UFT searched and medically assessed Hatten before placing him in ambulatory restraints around 4:00 p.m., and then escorted Hatten to D-Block without further incident. (Doc. 135, at 18, ¶¶ 115-17). According to Defendants, Hatten was thereafter left in restraints, and checked by staff every 15 minutes in accordance with BOP policy. (Doc. 135, at 18, ¶ 122). Also pursuant to BOP policy, a lieutenant performed a check every two hours and Health services performed checks every eight-hour shift.
As a consequence, Hatten was issued an incident report for threatening another with bodily harm and refusing an order. (Doc. 135, at 18, ¶ 119). After a disciplinary hearing on August 16, 2011, Hatten was found to have committed the prohibited act of threatening another with bodily harm (code 203). (Doc. 135, at 19, ¶ 120). Hatten was sanctioned with the loss of 27 days of good conduct time, the imposition of 30 days in disciplinary segregation, the loss of 120 days of commissary, telephone and visiting privileges, and impoundment of his personal property for 120 days. (Doc. 135, at 19, ¶ 120). Further, the after-action review of the incident found that the use of force and application of restraints to Hatten had been reasonable and appropriate. (Doc. 135, at 18, ¶ 121).
On May 30, 2017, the Defendants conducted a search of the BOP's sentry database to verify whether Hatten had exhausted his administrative remedies. (Doc. 135, at 23, ¶¶ 147-48). This search revealed that Hatten filed seven hundred and sixty-four (764) administrative remedies while under BOP custody—one hundred and seventy-six (176) of which were filed between July 16, 2011 and the date Hatten initiated the instant action on January 31, 2013 (the "Relevant Period"). (Doc. 135, at 23-24, ¶¶ 148-50). Defendants contend that Hatten only commenced and successfully exhausted nine (9) of these one hundred and seventy-six (176) claims during the Relevant Period. (Doc. 135, at 52-53, ¶¶ 177-78; Doc. 136, at 4). Defendants further submit that none of Hatten's exhausted administrative remedies from the Relevant Period mentioned the use of restraints, the application of excessive force, the events of July 16, 2011, or the use of retaliatory force and/or restraints. (Doc. 135, at 52-53, ¶¶ 177-79; Doc. 136, at 4). Moreover, Hatten did not identify any of the remaining defendants in his exhausted administrative remedies. (Doc. 135, at 37-39, ¶¶ 161-62; Doc. 135, at 46-48, ¶¶ 168-70; Doc. 135, at 52-53, ¶¶ 177-78; Doc. 136, at 4).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if "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 fact is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is "genuine" if the evidence "is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, the court's function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply "determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
As an initial matter, the Court considers Hatten's filing, titled "Motion of the Plaintiff for Summary Affirmance and Stay Briefing Schedule." (Doc. 148). At the outset, the Court notes that this motion suffers from several procedural deficiencies. First, as pointed out by Defendants, Hatten failed to comply with the requirements of Local Rule 7.5, as he has not filed a brief in support of this motion. (Doc. 149, at 5-6). Second, Hatten's motion violates Local Rule 5.1(h), as he moves for two separate forms of relief in the same motion—(1) summary affirmance and (2) a stay in the briefing schedule. (Doc. 149, at 5-6). Despite these technical violations of the local rules, however, which warrant withdrawal of the motion in its entirety, see L.R. 7.5, Hatten's motion is also fatally flawed insofar as he seemingly requests summary action in his favor.
Summary action is a function of appellate procedure. See Third Circuit L.A.R. 27.4; Hart v. Holts, 275 F. App'x 87, 89-90 (3d Cir. 2007) ("Summary action is appropriate if there is no substantial question presented in the appeal.") (emphasis added). Indeed, the "Third Circuit's Local Appellate Rules, including Rule 27.4(a) which pertains to summary action, apply to cases before the Third Circuit, not to cases before the District Court." United States v. Platts, No. CA 14-1099, 2014 WL 4450077, at *3 (W.D. Pa. Sept. 10, 2014). Here, Hatten seeks an order "summarily affirming [his] claims on all counts," and requests a stay in the briefing schedule until the Court rules upon this motion. (Doc. 148, at 8). Notably, Hatten also contends that the "sole reason" for the summary affirmance motion is to "cut to the chase" regarding the outcome of the case. (Doc. 150, at 3). Accordingly, insofar as Hatten intended to effectively circumvent the briefing requirement set forth in this Court's Order of June 14, 2018 (Doc. 147) by seeking "summary disposition" of the action, instead of filing the appropriate documents in response to Defendants' motion for summary judgment, he has relied on an inappropriate procedural mechanism.
In addition, to the extent that Hatten's motion for a stay in the briefing schedule is not rendered moot, it should nonetheless be denied on the merits as no basis for a stay exists.
Accordingly, it is respectfully recommended that Hatten's motion for summary affirmance and stay in the briefing schedule (Doc. 148) be
The remaining Defendants move for summary judgment pursuant to Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE on five respective grounds. (Doc. 130; Doc. 136, at 11). First, Defendants move for summary judgment on the grounds that Hatten failed to fully or properly exhaust his Bivens claims (Counts I and II) against Defendants Miller and Zegarski. (Doc. 136, at 11). Second, Defendants alternatively move for summary judgment on Hatten's Bivens claims based on Defendants Miller and Zegarski's lack of personal involvement in the decision to place and keep Hatten in ambulatory restraints. (Doc. 136, at 11). Third, Defendants assert that Hatten's common law tort claims properly fall under the FTCA, and thus move for summary judgment on Counts XII, XIII, and XIV as the individual federal employees are improperly named defendants. (Doc. 136, at 11, 21-23). Fourth, Defendants move for summary judgment on Hatten's FTCA claims against the United States (Counts III and IV), as they are barred by the FTCA's discretionary function exception. (Doc. 136, at 11). Fifth, Defendants alternatively argue that summary judgment should be entered in their favor regarding Hatten's Tort claims (Counts III, IV, XII, XIII, and XIV), as the BOP acted in accordance with its regulations by placing Hatten in restraints. (Doc. 136, at 11). The Court considers these grounds for summary judgment in turn.
Defendants first argue that Hatten failed to properly exhaust his Bivens claims for excessive force and retaliation against Defendants Miller and Zegarski prior to initiating the present lawsuit. (Doc. 136, at 11). As such, Defendants assert that the Prison Litigation Reform Act ("PLRA") bars this Court from considering his unexhausted claims set forth in Counts I and II of the complaint. See 42 U.S.C. § 1997(e); (Doc. 136, at 17). Although Hatten does not directly respond to this argument, the body of his motion for summary affirmance asserts that several of his grievances were "erroneous[ly] rejected." (Doc. 148, at 3). Further, Hatten's motion appears to focus on grievance 648018, which Defendants argue was neither properly exhausted nor related to the claims Hatten raised in his complaint. (Doc. 135, at 14-15; Doc. 148, at 3; Doc. 149, at 3-4).
Before bringing a Bivens action concerning prison conditions, a prisoner must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) ("[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues."). "[I]t is beyond the power of this court . . . to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis." Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000). Failure to exhaust administrative remedies is an affirmative defense that must be pleaded and proven by the defendant. Ray v. Kertes, 385 F.3d 287, 295 (3d Cir. 2002) ("Prison officials are likely to have greater legal expertise and, as important, superior access to prison administrative records in comparison to prisoners.") (alteration omitted). Moreover, § 1997e(a) requires "proper" exhaustion of administrative remedies, meaning strict compliance with BOP deadlines and other procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-95 (2006). "A procedural default by the prisoner, either through late or improper filings, bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim." McKinney v. Kelchner, No. 1:CV-05-0205, 2007 WL 2852373, at *3 (M.D. Pa. Sept. 27, 2007) (citing Spruill v. Gillis, 372 F.3d 218, 227-32) (3d Cir. 2004).
The BOP has established a multi-stage administrative remedy process through which an inmate may seek formal review of an issue related to any aspect of his confinement. See 28 C.F.R. § 542.10 et seq.; see also Nyhuis, 204 F.3d at 77 n.12 (describing the administrative remedy process). At the first stage, the inmate is required to present an issue of concern informally to staff in an attempt to informally resolve the issue without a formal request for an administrative remedy. 28 C.F.R. § 542.13(a). If unable to satisfactorily resolve the issue informally, the inmate must file a formal written administrative remedy request on BOP Form BP-9. 28 C.F.R. § 542.14(a). Ordinarily, the inmate's BP-9 must be submitted to the Warden within 20 calendar days following the date on which the basis for the administrative remedy request occurred. 28 C.F.R. § 542.14(a). If dissatisfied with the Warden's response, the inmate may submit a written appeal to the appropriate Regional Director on BOP Form BP-10. 28 C.F.R. § 542.15(a). Ordinarily, the inmate's BP-10 must be submitted within 20 calendar days of the date the Warden signed his or her response. 28 C.F.R. § 542.15(a). If dissatisfied with the Regional Director's response, the inmate may submit a written appeal to the BOP's General Counsel on BOP Form BP-11. 28 C.F.R. § 542.15(a). The inmate's BP-11 must be submitted within 30 calendar days of the date when the Regional Director signed his or her response. 28 C.F.R. § 542.15(a). This review by the BOP's General Counsel is the final administrative appeal for administrative remedy requests by federal prisoners. 28 C.F.R. § 542.15(a). The BOP regulations expressly provide for the extension of these deadlines in a variety of circumstances. See 28 C.F.R. § 542.14(b)(1); 28 C.F.R. § 542.15(a).
The Defendants contend that Hatten failed to exhaust his administrative remedies with respect to either of the two incidents giving rise to his Bivens excessive force and retaliation claims. In support, they have submitted the Declaration of Jennifer Knepper (Doc. 135-2), an attorney at USP Lewisburg, and portions of a Teleconference Deposition of Hatten. (Doc. 135-3, at 46-48). Attached to Ms. Knepper's declaration is a printout of Hatten's complete administrative remedy history, along with true and accurate copies of Hatten's "administrative remedy generalized retrieval" from the Relevant Period. (Doc. 135-2, at 3, ¶¶ 15-16). In her declaration, Ms. Knepper states that she limited her examination of Hatten's administrative remedy requests to those initiated within the Relevant Period. (Doc. 135-2, at 4). Of those one hundred and seventy-six (176) submissions, Ms. Knepper identified, and outlined the substance and procedural history of, a number of administrative remedies, which were either based on subject matter that may be construed as relating to claims of excessive force and retaliation, or Hatten's specific identification of them as being related to the instant lawsuit. Of these potentially relevant administrative remedies,
Defendants argue that, in these five properly exhausted administrative remedies, Hatten did not state anything with respect to the July 16, 2011 and July 25, 2011 incidents in and of themselves, let alone mention being placed in restraints, the use of excessive force, or the application of restraints in retaliation for filing grievances. (Doc. 136, at 16). Defendants additionally submit that these administrative remedies failed to identify Defendants Miller or Zegarski by name, or any other Defendant for that matter, therein. (Doc. 136, at 16). Further, Defendants emphasize that any other potentially relevant administrative remedies, including # 648018 as identified by this Court in its previous Report and Recommendation, were rejected by the BOP, and thus never decided on the merits as required for proper exhaustion. (Doc. 136, at 15).
Upon review of the supporting evidence submitted by Defendants, it is evident that administrative remedies # 677901, # 677931, and #679902 failed to exhaust Hatten's Bivens claims. Specifically, administrative remedy 677901, initiated on February 29, 2012, addressed complaints involving the competence of certain administrative remedy coordinators, who notably are not parties to this action, and rejection notices that Hatten received. (Doc. 135-2, at 270-77; Doc. 136, at 15). Similarly, administrative remedy 677931, initiated on February 29, 2012, concerned the denial of Hatten's request for documentation of his incident reports from his central file. (Doc. 135-2, at 278-91; Doc. 136, at 15). Also, administrative remedy 679902, initiated on March 14, 2012, focused on allegations of staff impeding Hatten's administrative remedy process, but did not mention Defendants Miller or Zegarski by name. (Doc. 135-2, at 292-300; Doc. 136, at 15). None of these three grievances thus refer to the events of July 16, 2011 or July 25, 2011, identify the moving Defendants, or state that Hatten's placement in restraints was in retaliation for filing grievances.
Administrative remedies 661301 and 661304, however, generally pertain to the events of July 16, 2011 and July 25, 2011, as they involve Hatten's appeals of his disciplinary hearings and the incident reports he received on those dates. (Doc. 136, at 15-16; Doc. 135-2, at 233-37; Doc. 135-2, at 238-43). Nonetheless, Defendants contend that exhausting challenges to the inmate disciplinary process is not a proper vehicle for exhausting an inmate's underlying civil rights violations. (Doc. 136, at 16). Indeed, courts in this Circuit have found that the exhaustion requirement for administrative remedies involving disciplinary decisions is distinct from the exhaustion requirement for civil rights actions seeking monetary damages. See Reyes v. Jordan, No. 1:14-CV-1066, 2015 WL 5602912, at *4 (M.D. Pa. Sept. 23, 2015) ("The purpose of a [disciplinary hearing officer] appeal is to challenge the procedures employed at the hearing level and determine whether the evidence supports the [disciplinary hearing officer's] conclusions."); Davis v. Bittenbender, No. 1:13-CV-2660, 2016 WL 561946, at *5 (M.D. Pa. Feb. 12, 2016) ("Although [Plaintiff] undisputedly exhausted the administrative review process with regard to the [disciplinary hearing officer] proceedings, at no point following the resolution of his habeas petition in this Court, or the final disposition of the [disciplinary hearing officer] proceedings, did he raise any of the alleged Bivens claims in the administrative arena. Consequently, Defendants are entitled to an entry of summary judgment due to [Plaintiff's] failure to exhaust his administrative remedies."); see also Redmond v. Lytle, No. 3:16-CV-01804, 2017 WL 4875284, at *8 (M.D. Pa. May 26, 2017), report and recommendation adopted, No. 3:16-CV-01804, 2017 WL 4867392 (M.D. Pa. Oct. 27, 2017) ("While exhausting a [disciplinary hearing officer] appeal may not exhaust separate civil rights claims, appealing a [disciplinary hearing officer] decision is an appropriate way to exhaustion some claims, particularly due process claims arising from the disciplinary hearing.") (citing Shelton v. Crawley, 548 F. App'x 744, 746 (3d Cir. 2013)). Here, Defendants argue that, while administrative remedies 661301 and 661304 concern the events of July 16, 2011 and July 25, 2011, Hatten exhausted issues that related to his disciplinary appeals, and not his Bivens claims. (Doc. 136, at 16). Further, the allegations contained in these administrative remedies could not reasonably be perceived as raising independent claims that sound in excessive force or retaliation. (Doc. 135-2, at 233-43). As such, based on the evidence submitted in this particular case, the Court is convinced by Defendants' argument that administrative remedies 661301 and 661304 are insufficient for the purposes of exhausting Hatten's excessive force or retaliation claims. (Doc. 136, at 16).
As a final matter, the Court notes that Hatten's motion for summary affirmance and stay also identifies the following administrative remedies as being related to his excessive force and retaliation claims: # 633038; #633724; #634999; #637701; #648018; #664299; and # 679902. (Doc. 148, at 6). Hatten asserts in the body of this motion that BOP Officials rejected these grievances, either erroneously or for frivolous reasons. (Doc. 148, at 6). However, even when construed in the light most favorable to Hatten, this contention does not counter the argument that Hatten's rejected administrative remedies, which were not considered on the merits, failed to exhaust his underlying claims. Further, Hatten fails to go beyond the pleadings in producing competent evidence that supports he exhausted these administrative remedies, # 648018 in particular, and merely relies on his own self-serving testimony that their rejection was improper. Moreover, with respect to # 679902, which the Defendants do not contest was properly exhausted, Hatten fails to provide any corroborating evidence that this administrative remedy mentioned the application of restraints or the use of excessive force on July 16, 2011 or July 25, 2011 in retaliation for filing grievances. Thus, even when liberally construed in favor of Hatten, the arguments raised in his motion for summary affirmance and stay do not create a genuine dispute for trial.
Based on the record before the Court, and viewing the evidence of record in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact, and the Defendants are entitled to judgment as a matter of law on the ground that Hatten has failed to exhaust all available administrative remedies relating to his excessive force and relation claims. Accordingly, it is recommended that the Defendants' motion for summary judgment (Doc. 130) be
Next, Defendants seeks summary judgment in their favor with respect to Counts III and IV, as they contend the discretionary function exception bars Hatten's FTCA claims.
Nonetheless, the FTCA is subject to several exceptions, including the discretionary function exception enumerated in section 2680(a) of the Act. 28 U.S.C. § 2680(a); Baer v. United States, 722 F.3d 168, 172 (3d Cir. 2013); Rinaldi v. United States, 460 F. App'x 80, 81 (3d Cir. 2012). This exception provides that no liability shall lie for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty. . . whether or not the discretion involved be abused." See 28 U.S.C. § 2680(a). However, it "does not apply to every situation in which there is an actual option to choose between courses of action or inaction." S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 332 (3d Cir. 2012) (quoting Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997). Rather, "the purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. [Therefore,] when properly construed, the exception protects only governmental actions and decisions based on considerations of public policy." United States v. Gaubert, 499 U.S. 315, 323 (1991) (internal quotations omitted). Further, "[a]lthough a plaintiff bears the burden of establishing that his claims fall within the scope of the FTCA's waiver of the federal government's sovereign immunity . . . the Government has the burden of proving the applicability of the discretionary function exception." S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 333 (3d Cir. 2012).
Before considering the application of the discretionary function exception, a court must identify the relevant conduct at issue. S.R.P., 676 F.3d at 332. Thereafter, to determine whether the exception shields the government from suit arising out of the challenged conduct, the court must engage in the following two-part inquiry: "(1) whether the act involves an element of judgment or choice, rather than a course of action prescribed by a federal statute, regulation, or policy; and (2) even if the challenged conduct involves an element of judgment, whether that judgment is of the kind that the discretionary function exception was designed to shield." Rinaldi, 460 F. App'x at 81; (citing Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000)); Berkovitz v. United States, 486 U.S. 531, 536 (1988) ("[C]onduct cannot be discretionary unless it involves an element of judgment or choice."). "[I]f a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations." United States v. Gaubert, 499 U.S. 315, 324 (1991).
As a threshold matter, the Court considers the conduct Hatten challenges. See S.R.P., 676 F.3d at 332. Here, Hatten complains that the Defendants applied his restraints in a "negligent, careless, and harmful manner" on July 16, 2011 and July 25, 2011. (Doc. 1, at 18). Further, Hatten argues that, during his initial and continued placement in restraints, Defendants unreasonably impaired his circulation and breathing, and did not act in accordance with penological standards, practices, and guidelines. (Doc. 1, at 18). Hatten additionally claims that the BOP supervisory staff failed to train, supervise, and regulate its employees regarding the proper use of restraints, thereby subjecting him to their excessive and continued imposition. (Doc. 1, at 18-20). In essence, the relevant conduct Hatten challenges is the manner in which Defendants applied his restraints on the dates at issue, the decision to keep him in restraints for an extended period, and the amount of supervisory oversight and regulation surrounding the use of restraints.
With respect to the first prong of the discretionary function exception, Defendants assert that decisions regarding the provision of an inmate's "safekeeping, care, protection, instruction and discipline" all involve an element of choice. (Doc. 136, at 27). In support of this contention, Defendants argue that 18 U.S.C. § 4042, which imposes a general duty of care on the BOP to safeguard prisoners in its custody, "leaves the implementation of these duties to the discretion of BOP officials." Donaldson v. United States, 281 F. App'x 75, 77 (3d Cir. 2008); see also Ruiz v. United States, No. 3:CV-14-2459, 2016 WL 1245732, at *3 (M.D. Pa. Mar. 23, 2016), aff'd, 664 F. App'x 130 (3d Cir. 2016) (noting that since 18 U.S.C. § 4042 does not dictate the manner in which its duty of care is to be fulfilled, the BOP "has the ability to exercise its judgment" with respect to such matters). Defendants further claim that, while the BOP has existing policy on the use of force and application of restraints,
As pointed out by Defendants, a Court in this Circuit recently considered the question of whether the decision-making process surrounding the application of restraints fell under the discretionary function exception of the FTCA. (Doc. 136, at 22). In Peraza v. United States, a federal inmate incarcerated at USP-Lewisburg brought a claim under the FTCA, alleging that his prolonged, and repeated, placement in overly tight restraints was improper. No. 3:CV-15-1224, 2017 WL 1150662, at *1 (M.D. Pa. Mar. 28, 2017), appeal dismissed sub nom. Peraza v. USA, No. 17-2188, 2017 WL 5891595 (3d Cir. July 24, 2017). The district court determined that, even though the BOP had policies regarding the use of force and application of restraints, there was nothing to indicate that a specific federal statute, regulation, or policy existed which "required the USP-Lewisburg correctional staff to take a particular course of action regarding their decision-making as to whether or when to apply restraints to [the prisoner-Plaintiff]." Peraza, 2017 WL 1150662, at *6. Thus, the court held that the prisoner's challenge to his placement in restraints fell within the discretionary function exception, because "determinations as to whether restraints, either ambulatory or four point, should be employed against [the prisoner-Plaintiff] were clearly discretionary decisions." Peraza, 2017 WL 1150662, at *6.
Here, Defendants essentially construe Counts III and IV as challenges to the decision to place Hatten in restraints and the alleged lack of supervision concerning the imposition of restraints. (Doc. 136, at 24). As to the first step of the inquiry, the Court finds that the decision to restrain Hatten in ambulatory restraints, and how to do so, involved and element of choice. See Peraza, 2017 WL 1150662, at *6.; see also Porter v. United States, No. 3:CV-15-142, 2018 WL 1479384, at *6 (M.D. Pa. Mar. 27, 2018), appeal dismissed sub nom. Porter v. USA, No. 18-1788, 2018 WL 4904763 (3d Cir. June 25, 2018) (Noting that, under BOP policy, "[r]estraints may be employed at the discretion of prison officials to the extent necessary to gain control over inmates who have destroyed property; inflicted injury upon self; become violent or display signs of imminent violence."). Further, there are no substantiated allegations that would support additional oversight or intervention was warranted under the circumstances. With respect to the second step, Hatten has not presented any evidence that would rebut the presumption that Defendants' decision to apply restraints was not grounded in legitimate considerations of correctional safety. See United States v. Gaubert, 499 U.S. 315, 324 (1991). Thus, insofar as Counts III and IV challenge the placement and use of ambulatory restraints on July 16 and July 25, 2011, the discretionary function exception bars consideration of these claims under the FTCA. See Peraza, 2017 WL 1150662, at *6; see also Porter, 2018 WL 1479384, at *6 (finding the discretionary function exception applied to claims regarding the decision making by USP-Lewisburg non-medical staff with respect to the use of, and placement in, ambulatory restraints against the prisoner-plaintiff).
Nonetheless, Hatten's negligence
However, Defendants assert that Hatten cannot satisfy the second element, as they did not breach any of care owed to Hatten. (Doc. 136, at 33). In support, Defendants refer to section 9 of P.S. 5566.06, concerning progressive and ambulatory restraints, which provides:
Defendants further rely on video footage taken from July 16 and July 25, 2011,
As such, even when viewed in the light most favorable to Hatten, there is no evidence in the record that demonstrates the application of ambulatory restraints on the dates in question was negligent, as alleged in Count III of the complaint. Specifically, the largely undisputed record reveals that Defendants applied the restraints in accordance with the BOP's use of force policy, and subsequently monitored Hatten's physical and mental health. Further, as Hatten's negligent failure to supervise and regulate staff claim is predicated upon his general negligence claim (Count III), Count IV also fails to demonstrate that Defendants breached a duty of care owed to Hatten, let alone proximately caused any alleged harm. Thus, notwithstanding the application of the discretionary function exception, Defendants are entitled to summary judgment on Counts III and IV.
For the aforementioned reasons, the Court respectfully recommends that summary judgment on Hatten's FTCA claims (Counts III and IV) be
In his complaint, Hatten also asserts pendent state law claims against the Defendants for Intentional Infliction of Emotional Distress (Count XII), Negligent Infliction of Emotional Distress (Count XIII), and assault and battery (Count XIV). (Doc. 1, at 22-24). Defendants argue that the Court should dismiss these claims for lack of supplemental jurisdiction.
Based upon its review of the record before this Court, and having considered the arguments made by all parties, the Court can discern no genuine issue of material fact sufficient to preclude an award of summary judgment in Defendants' favor. Specifically, the record contains no evidence upon which a reasonable jury might find that Hatten properly exhausted his Bivens claims (Counts I and II) against Defendants Miller and Zegarski. Further, even if the discretionary function exception bars consideration of Hatten's FTCA claims, they nonetheless fail on the merits as Hatten cannot satisfy the elements of prima facie negligence claims. (Counts III and IV). Further, as Hatten's federal claims do not survive summary judgment, supplemental jurisdiction should not be exercised over his remaining state law claims (Counts XII, XIII, and XIV).
Accordingly, it is respectfully recommended that:
