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Smith v. United States

December 3, 2007


The opinion of the court was delivered by: Judge Jones



Pending before this Court is a Report and Recommendation ("the Report") issued by Magistrate Judge Thomas M. Blewitt ("Magistrate Judge Blewitt" or "the Magistrate Judge") on August 3, 2007. (Rec. Doc. 8). For the reasons that follow, the Report will be adopted in part and rejected in part.


On June 15, 2007, Plaintiff Benjamin Smith ("Plaintiff" or "Smith"), an inmate at the Federal Correctional Institution in Cumberland, Maryland ("FCI-Maryland"), who is proceeding pro se, commenced the instant action by filing a Complaint in this Court pursuant to 28 U.S.C. § 1331. (Rec. Doc. 1). In the Complaint, Plaintiff appears to name twenty-one (21) Defendants: 1) the United States of America; 2) the Centric Store; 3) Snack Legends; 4) Keefe Supply; 5) Warden Cameron Lindsay; 6) Corrections Officer ("CO") Bossick; 7) Counselor Gubbiotti; 8) Dr. Odelda Dalmasi; 9) Captain Frank Lara; 10) Scott Dodrill; 11) Mr. Dale; 12) CO Palmer; 13) Frank Karam; 14) Mrs. Erickson; 15) Lt. Clookey; 16) Mr. Symonsen; 17) CO Wagner; 18) Mr. Coleman;*fn1 19) Mr. Kizziah; 20) Mr. Hess; and 21) Nurse Fashanna. Id.

Plaintiff's complaints about the aforementioned Defendants arise out of various events during Plaintiff's stay at the United States Penitentiary at Canaan, in Waymart, Pennsylvania ("USP-Canaan"). For the sake of simplicity, Plaintiff's claims can be viewed as arising out of three (3) different situations:*fn2 1) the ingestion of cookies containing glass and the insufficient medical care that Plaintiff received therefor; 2) the failure to protect Plaintiff from a physical assault by another inmate and the conspiracy to inappropriately place Plaintiff in the Restricted Housing Unit ("RHU") as a result thereof; and 3) the exposure of Plaintiff to cold temperatures during two (2) different periods, autumn of 2005 and winter of 2005-2006.

Following referral of this action to Magistrate Judge Blewitt for preliminary review pursuant to 28 U.S.C. § 1915A, on August 3, 2007, the Magistrate Judge issued a Report recommending that with the exception of the First Amendment denial of access to courts claim against Mr. Lara and the Eighth Amendment failure to protect claims against Mr. Kizziah, Mr. Bossick, and Mr. Wagner, Plaintiff's claims should be dismissed. On October 29, 2007 (doc. 13), Plaintiff filed Objections to the Magistrate Judge's August 3, 2007 Report (doc. 8). Having received Plaintiff's Objections, this matter is ripe for our disposition.


When objections are filed to a report of a magistrate judge, we make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge to which there are objections. See United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. § 636(b)(1); Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they treat recommendations of a magistrate judge. See id. Indeed, in providing for a de novo review determination rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).


In his Objections, Plaintiff takes issue with many of the Magistrate Judge's recommended dismissals. In an attempt to concisely address the lengthy Report and Plaintiff's multiple Objections, within our discussion of each of the three (3) scenarios enumerated above, we endeavor to: 1) recite succinctly the pertinent allegations related thereto; 2) outline the claims arising therefrom and the Magistrate Judge's recommended disposition thereof; and 3) analyze Plaintiff's most salient Objections.

I. The Ingestion of Cookies Containing Glass and the Resulting Medical Treatment

Plaintiff initially complains that Mr. Dale, manager of the Centric Store, i.e. the commissary at USP-Canaan, ordered Snack Legends cookies from Keefe Supply. Plaintiff asserts that Mr. Dale was negligent in so ordering because he had been given notice that honey buns previously received from that supplier had been moldy. In any event, on or about June 13, 2005, after removing the pre-packaged wrapping from Snack Legends Duplex cookies, Plaintiff began to consume them. Biting down on what appeared to be glass, Plaintiff then "went to medical for treatment." (Rec. Doc. 1 at 2 (emphasis omitted)). After being told that no treatment was needed at that time, Plaintiff was instructed to return to medical as needed. (Rec. Doc. 13-2 at 1). Eight days later, on or about June 21, 2005, Plaintiff experienced rectal bleeding and returned to medical for treatment. However, without examination, Mr. Symonsen, an emergency medical technician, initially dismissed Plaintiff's complaints. Somewhat inexplicably, Plaintiff goes on to contend that he was not examined by Dr. Dalmasi until fourteen days later, which by our calculation would have been on or about July 5, 2005, but that same examination took place after his bleeding had subsided on July 10, 2005.

In any event, as Magistrate Judge Blewitt notes, a liberal reading of this pro se Plaintiff's Complaint suggests that Plaintiff asserts a number of claims as a result of these events: 1) product liability claims under § 402A of the Second Restatement of Torts; 2) negligence claims pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq.; and 3) Bivens*fn3 claims for violation of his Eighth Amendment rights.

The Magistrate Judge recommends dismissal of all of the aforementioned claims. With respect to the product liability claims and the FTCA claims, the Magistrate Judge indicates that Plaintiff should file separate suit(s) because, inter alia,*fn4 "Plaintiff can . . . [neither] pursue a private tort claim against private entities in a federal civil rights action . . . [n]or . . . name private entities as Defendants in his Bivens action[]."*fn5 (Rec. Doc. 8 at 5 (citing, respectively, Oriakhi v. Wood, 2006 WL 859543 (M.D. Pa. 2006); Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 53 (2001))). With respect to Plaintiff's Eighth Amendment claims, the Magistrate Judge notes that to the extent they arise from Mr. Dale or medical personnel's negligence, they should be dismissed because negligence does not amount to a constitutional violation. See County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Further, the Magistrate Judge recommends dismissal of Plaintiff's remaining Eighth Amendment claims arising out of these events on the ground that Plaintiff's allegations do not arise to the level of deliberate indifference required by Estelle v. Gamble, 429 U.S. 97 (1976), and Farmer v. Brennan, 511 U.S. 825 (1994).

Plaintiff objects to the recommended dismissal of all of these claims. For the reasons to follow, we will sustain Plaintiff's ...

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