United States District Court, M.D. Pennsylvania
September 23, 2005.
DAVID ANTHONY McKINNEY Plaintiff
UNITED STATES OF AMERICA, Defendant.
The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge
MEMORANDUM AND ORDER
David Anthony McKinney ("Plaintiff"), an inmate presently
confined at the United States Penitentiary, Marion, Illinois
("USP-Marion"), filed this combined civil rights/Federal Tort
Claims Act ("FTCA") action. Originally named as Defendants were
United States Attorney General John Ashcroft; Kathleen
Hawk-Sawyer, former Director of the Federal Bureau of Prisons
(BOP); USP-Marion Warden E.A. Stepp and thirteen (13) officials
at McKinney's prior place of confinement, the Allenwood United
States Penitentiary, White Deer, Pennsylvania ("USP-Allenwood").
By Memorandum and Order dated January 16, 2004, the Defendants'
motion to dismiss was granted in part. The civil rights portion of the
complaint was dismissed as being barred by the applicable statue
of limitations. However, McKinney's FTCA claims were allowed to
proceed and the United States of America was substituted as sole
According to the complaint, on May 18, 2000, Correctional
Officer Simpler handcuffed the Plaintiff and escorted him to
Lieutenant Noone. Upon their arrival at the front of the prison's
Special Housing Unit ("SHU"), Noone took the handcuffs from
Simpler and directed McKinney towards the SHU Property Room.
McKinney alleges that he was subsequently knocked unconscious
when Correctional Officer T. Burke forced him into the Property
Room and "slammed me down to the floor."*fn1 Record document
no. 1, ¶ IV. After regaining consciousness, Burke instructed
McKinney to look out the window where he saw J. Fenney smiling at
him. The complaint adds that at this juncture "the attacker took
out his knife and attempted to kill me." Id.
When the Plaintiff began pleading for his life, Burke ceased
the attack and told McKinney that the assault had been ordered by
Original Defendants R. Eldridge and Fenney. However, Burke resumed the beating when Fenney began
banging on the window. Specifically, the guard purportedly
slammed Plaintiff's head into the Property Room door. After
leaving the Property Room, Burke pushed McKinney into the walls
of the common area of the SHU. Burke proceeded to throw the
prisoner to the floor with the assistance of other correctional
staff. It is alleged that Burke then pulled Plaintiff's left
elbow in an upward motion with such force that the prisoner
suffered a fracture to his left arm.
When McKinney informed Lieutenant Arrington that he had been
assaulted, Arrington purportedly ordered that a videotape taken
of the attack be erased. Lieutenant Gonzales subsequently served
McKinney with an incident report regarding the altercation, took
his statement and indicated that he would look into the incident.
Plaintiff claims that neither Gonzales, Warden Mendez nor the BOP
took any corrective action. The complaint further alleged that
McKinney was intentionally delayed needed treatment for his
broken left arm.
Following the incident, Plaintiff was subjected to additional
verbal threats and physical abuse by Defendants Burke and
Matlack. His remaining contention asserts that he was assaulted
by unidentified correctional staff following his arrival at USP-Marion. McKinney seeks monetary damages and a transfer from
USP-Marion to another correctional facility.
Presently pending is the Defendants' motion requesting entry of
summary judgment. The motion (Record document no. 48) has been
briefed and is ripe for disposition. For the reasons outlined
below, the motion will be granted.
Standard of Review
Summary judgment is appropriate if the "pleadings, depositions,
answers to interrogatories, admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(c).
[T]he plain language of Rule 56(c) mandates the entry
of summary judgment, after adequate time for
discovery and upon motion, against a party who fails
to make a showing sufficient to establish the
existence of an element essential to that party's
case, and on which that party will bear the burden of
proof at trial. In such a situation, there can be "no
genuine issue as to any material fact," since a
complete failure of proof concerning an essential
element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party
is "entitled to a judgment as a matter of law"
because the nonmoving party has failed to make a
sufficient showing on an essential element of her
case with respect to which she has the burden of
proof. "[T]he standard [for granting summary judgment] mirrors the standard for a directed
verdict under Federal Rule of Civil Procedure
50(a). . . ."
Celotex Corp. v. Catrett, 477 U.S. 317
, 322-23, (1986).
The moving party bears the initial responsibility of stating
the basis for its motion and identifying those portions of the
record which demonstrate the absence of a genuine issue of
material fact. The moving party can discharge that burden by
"`showing' . . . that there is an absence of evidence to support
the nonmoving party's case." Celotex, supra,
106 S.Ct. at 2553 and 2554. Once the moving party has satisfied its burden,
the nonmoving party must present "affirmative evidence" to defeat
the motion, consisting of verified or documented materials.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
Issues of fact are "genuine only if a reasonable jury,
considering the evidence presented could find for the nonmoving
party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir.
1988). Only disputes over facts that might affect the outcome of
the suit will preclude the entry of summary judgment. Id. In
evaluating a motion for summary judgment, the entire record must
be examined in the light most favorable to the nonmoving party.
The Defendant claims entitlement to summary judgment on the
grounds that: (1) Plaintiff's intentional tort claim relating to
the alleged assault is not actionable under the FTCA; and (2) McKinney's complaint fails to set forth a
viable claim of medical negligence.
Intentional Tort Exception
Defendant's initial argument is that Plaintiff's claim is
barred by the intentional tort exception of the FTCA. In response
to the motion, Plaintiff has filed a motion (Record document no.
52) indicating that copies of his institutional medical records
which he intended to submit in opposition to the summary judgment
motion were given to an official at USP-Marion for photocopying.
However, the USP-Marion official is allegedly refusing to return
those documents. Since consideration of the Plaintiff's medical
records are not relevant to the disposition of Defendant's
pending summary judgment motion, his motion will be denied
without prejudice. However, McKinney may initiate a separate
action against any USP-Marion official whom he believes has
violated his constitutional rights before a court of proper
The FTCA provides a remedy in damages for the simple negligence
of employees of the United States. United States v. Muniz,
374 U.S. 150, 150 (1963). Under the FTCA, sovereign immunity is
waived against persons suing the federal government for the
commission of various torts. Simon v. United States, 341 F. 3d 193, 200 (3d Cir. 2003). In presenting an FTCA claim, a plaintiff
must show: (1) that a duty was owed to him by a defendant; (2) a
negligent breach of said duty; and (3) that the negligent breach
was the proximate cause of the plaintiff's injury/loss. Mahler
v. United States, 196 F. Supp. 362, 364 (W.D. Pa. 1961),
aff'd, 306 F.2d 713 (3d Cir.), cert. denied, 371 U.S. 923
The United States is only liable under the FTCA for conduct by
government employees while acting within their scope of
employment. Matsko v. United States, 372 F.3d 556, 559 (3d Cir.
2004). When determining if a defendant was acting within the
scope of his employment at the time of the underlying incident,
courts must look to the law of the state where the incident
occurred. Doughty v. United States Postal Service, 359 F.
Supp.2d 361, 365 (N.J. 2005).
It is undisputed that Plaintiff filed and exhausted an
administrative tort claim regarding the May 18, 2000 incident and
subsequent mistreatment "up until September of 2000" by the
correctional officers who were allegedly involved in the initial
altercation. See Record document 26, Exhibit 3. Defendant
indicates that the May 18, 2000 incident, a physical
confrontation between Plaintiff and Officer Burke, occurred when
Burke was acting within the scope of his BOP employment in that
he was escorting the prisoner to the Lieutenant's office. See Record
document no. 50, p. 12.
The United States is immune from certain intentional torts
committed by its agents. For instance, the United States is not
liable for claims arising out of assaultand/or battery committed
by federal employees within the scope of their employment unless
the employee was an investigative or law enforcement officer.
See 28 U.S.C. § 2680(h). It has been recognized within this
district that BOP staff members may be considered law enforcement
officers. See King v. United States, Civil No. 93-258, slip
op. at 2 (M.D. Pa. July 276, 1993) (Kosik, J.); Zakaria v.
Bureau of Prisons, Civil No. 95-1787, slip op. at p. 7-9 (M.D.
Pa. April 29, 1998) (McClure, J.). The Defendant does not dispute
that Correctional Officer Burke may be deemed to be an
investigative/law enforcement officer for purposes of § 2680(h).
See Record document no. 50, p. 11.
However, despite its concession that Correctional Officer Burke
is considered a law enforcement officer for purposes of §
2680(h), the Defendant contends that because Plaintiff's injury
was not sustained during an arrest, search, or seizure, his FTCA
claim is precluded by the Third Circuit's interpretation of §
2680(h) in Pooler v. United States, 787 F.2d. 868, 872 (3d Cir.
1986). In Pooler, the Third Circuit addressed an FTCA claim
regarding the conduct of a police officer employed by the
Veterans Administration ("VA"). The Court noted that § 2680(h)
waives the government's sovereign immunity with regards to
certain acts or omissions of law enforcement or investigative
officers of the United States Government. It added that "[t]he
statute defines an investigative or law enforcement officer as
"any officer of the United States who is empowered by law to
execute searches seize evidence, or to make arrests for
violations of federal law.'" Id.
The Third Circuit noted that despite a generous reading of the
complaint, it did not assert that the VA official had "committed
an intentional tort while executing a search, seizing evidence,
or making an arrest." Id. It noted that it was in the course of
those "specified government activities . . . that government
agents come most directly in contact with members of the public."
Id. Based on the underlying legislative history, Pooler
concluded that the intentional tort exception should only apply
to activities of officers "engaging in searches, seizures or
In Matsko, the Third Circuit acknowledged that Pooler set
forth a narrow reading of § 2680(h), but declined to undertake a
determination as to whether Pooler should be broadened to encompass all activities undertaken by
investigative officers. Matsko, 372 F.3d at 560. Pooler's
determination that the intentional tort exception of § 2680(h) is
limited to specific kinds of law enforcement activity is binding
precedent on this Court.
In the present case, the alleged unconstitutional conduct of
May 18, 2000 did not occur during the course of an arrest.
Second, the challenged actions were not undertaken during the
course of a search. The third enumerated activity set forth in
Pooler was seizure.
It is noted that the most common type of seizure is an arrest
which results in detention. However, an investigative stop that
momentarily detains a person has been held to be a seizure. See
Terry v. Ohio, 392 U.S. 1 (1968). In Gallo v. City of
Philadelphia, 161 F.3d 217, 223 (3d Cir. 1998) the Third Circuit
recognized that "Supreme Court decisions provide that a seizure
is a show of authority that restrains the liberty of a citizen."
It added that an intentional limitation of liberty constitutes a
seizure. See id. at 225.
Based on McKinney's allegations there is a genuine issue as to
whether the placement of Plaintiff in handcuffs and his being
escorted to the SHU Property Room constituted a seizure. However,
the Third Circuit clearly indicated that the seizure for purposes of § 2680(h) referred only to the seizure of evidence.
Pooler, 787 F.3d at 872. In the present case, there are no
facts alleged which could support a determination that the
alleged conduct of May 18, 2000 occurred during a seizure of
evidence as contemplated by Pooler. Thus, although the
purported conduct in the present case is outrageous, it did not
take place during an arrest, search, or seizure of evidence.
Although Plaintiff cannot obtain relief under the FTCA, his
claims of being subjected to excessive force were actionable
civil rights claims. Unfortunately, McKinney failed to pursue
that remedy in a timely manner.
In conclusion, Correctional Officer Burke was acting within the
scope of his employment when the alleged assault occurred.
Burke's duties as a federal correctional officer qualifies him as
being an investigative or law enforcement officer for purposes of
the FTCA. However, since the alleged assault did not transpire
during one of the enumerated acts recognized under Pooler,
entry of summary judgment in favor of the Defendant with respect
to McKinney's allegation of being assaulted and related claims is
appropriate.*fn3 Negligent Medical Care
The Defendant next contends that "[t]o the extent this Court
may construe McKinney's complaint to raise a claim of medical
mistreatment for the injury he received . . . McKinney fails to
state a claim of medical negligence." Record document no. 50, p.
This Court's Memorandum and Order of January 16, 2004 correctly
noted Plaintiff filed an administrative tort claim regarding the
alleged assault by Burke on May 18, 2000 "and subsequent
mistreatment at that facility." Record document no. 31, p. 10. A
review of Plaintiff's administrative tort claim provided that in
addition to his May 18, 2000 claim of being assaulted, he sought
relief based on subsequent treatment that he received from the
correctional officers involved in the initial incident until
September, 2000. The administrative tort claim did not assert any
claims of medical mistreatment. See Record document no. 26,
Exhibit 3. On the contrary, it acknowledged that Plaintiff was
taken to an outside hospital for treatment following the assault. In conclusion, since Plaintiff has not asserted an FTCA claim
based upon negligent medical care, further discussion of
Defendant's remaining summary judgment argument is unwarranted.
IT IS HEREBY ORDERED THAT:
1. Defendant's motion for summary judgment (Record
document no. 48) is GRANTED.
2. The Clerk of Court is directed to CLOSE the case.
3. Plaintiff's motion seeking the return of his
medical records (Record document no. 52) is DENIED
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