The opinion of the court was delivered by: Judge Caputo
Presently before the Court is the Motion to Dismiss and for Summary Judgment filed by all Defendants (Doc. 144), in response to Plaintiff James V. Howard's Amended Complaint (Doc. 135). Because the claims for money damages against the BOP and the individual defendants in their official capacities are barred by sovereign immunity; because Plaintiff failed to exhaust administrative remedies with regard to Counts I, II, VII, the due process claim in Count V based on all but two incident reports, and the Eighth Amendment claim in Count VI based on Howard's alleged placement in a dry cell; because Plaintiff has not alleged in any Count that Defendants Nash, Londis, Walters, Litchard, Joseph Smith, Morales, Marr, Dodrill, or Bunch were personally involved in violating his rights; because the ADA does not apply to federal agencies; because Plaintiff has not put forth sufficient evidence to survive the motion for summary judgment on his Rehabilitation Act claim in Count III, his Eighth Amendment claims in Counts IV, V, or VI or his First Amendment claim in Count IV; and because his procedural due process claims in Counts IV and VI are barred by adequate post-deprivation remedies and those in Count V are barred by the favorable termination rule, Defendants' motion will be granted. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
Plaintiff James V. Howard, a prisoner in federal custody at FCI Schuylkill, has sued the Bureau of Prisons (BOP) and fifteen (15) individual Defendants, all in their official and individual capacities, who at relevant times held the following positions: At FCI Schuylkill, John Nash was warden, Robert P. Smith was a correctional counselor, Kevin Bittenbender was a disciplinary hearing officer (DHO), Dr. Gary Londis was Chief Psychologist, Dr. Glenn Walters was a psychologist, Craig Litchard was a lieutenant, and Thomas Reisinger was Special Investigative Supervisor (SIS); at USP Lewisburg, Joseph Smith was warden, Jon-Michael Morales and Kenneth Gabrielson were lieutenants, Dean Hollenbach was Unit Manager, Jeff Bunch was a DHO, and James Marr was a Correctional Officer; finally, Scott Dodrill is Regional Director and Mickey Ray is former Regional Director.
In his Amended Complaint (Doc. 135), Plaintiff alleges that when he arrived at FCI Schuylkill on July 24, 2002, he "requested minimal accommodations due to diagnoses of Bi-Polar, Schizophrenia and related disorders," but that Defendants Dr. Walters and Dr. Londis refuted these diagnoses and as a result, Plaintiff was assigned a cell mate by Defendant Smith. (Doc. 135 ¶¶ 15-17.) Plaintiff alleges that on July 24, 2003, he was attacked by this cell mate and that Defendant Reisinger's disciplinary report of the incident "fabricat[ed] a statement that plaintiff admitted to engaging in a physical altercation." (Id. ¶¶ 18-19.) Defendant Lt. Lichard then allegedly told Plaintiff to "take a deal" under which he would share a cell with his alleged attacker for forty-eight (48) hours. (Id. ¶ 20.) Plaintiff alleges that when he refused this arrangement and refused to leave the Special Housing Unit (SHU), Litchard threatened him with increased sanctions. (Id.) Such sanctions followed, Plaintiff alleges, when Defendant DHO Bittenbender confiscated Plaintiff's mattress for thirty (30) days and Defendant Ray denied Plaintiff's request to participate in the five hundred (500) hour drug treatment program . (Id. ¶¶ 21-22.)
Plaintiff alleges that shortly after he was transferred to USP Lewisburg, he encountered two (2) other inmates, who had been transferred along with him, telling other inmates that Plaintiff was an informant, but that Defendant Hollenbach denied him protective custody because he could not name the two (2) inmates. (Id. ¶¶ 23-24; P.'s Statement of Material Facts [P.'s Statement], Doc. 58 ¶ 11.) Plaintiff claims that he "repeatedly requested a photo spread of the inmates in the unit so identification could be made." (P.'s Statement, Doc. 158 ¶ 11.) Plaintiff also alleges that while housed in the SHU, a cell mate threatened him with assault; when Plaintiff was subsequently removed from the cell, his personal belongings remained there, allowing the cell mate to read Plaintiff's legal material which identified Plaintiff as an informant and to disseminate that information throughout the prison. (Doc. 135 ¶ 25.)
Plaintiff alleges as well that Defendant Lt. Morales removed Plaintiff to a "dry cell," in which he was deprived of bedding and soap, that Defendant Lt. Gabrielson threatened Plaintiff with increased sanctions unless Plaintiff withdrew a torts claim, and that Gabrielson (1) confiscated Plaintiff's personal property, on December 22, 2004, before any determination by a DHO; (2) ordered Plaintiff, on December 27, 2004, to a cell with an inmate with an assaultive history who was "known to abhor informants;" and (3) placed Plaintiff in hand and leg restraints and denied him clothing and bedding for a prolonged period when Plaintiff refused to move into the cell with that inmate. (Id. ¶¶ 26-29.) Plaintiff alleges that on January 5, 2005, he was forced to share a cell with a "hostile inmate" who had notified officials he would attack Plaintiff and later did so. (Id. ¶ 30.)
Finally, Plaintiff alleges that on June 8, 2005, a team of correctional officers ordered Plaintiff to submit to handcuffing, which Plaintiff immediately did, and that without provocation Defendant Marr then violently attacked Plaintiff, grabbing his head and neck, forcing him to bend with torso parallel to knees and slamming Plaintiff's head into a cell door, vestibule door, and holding trunk door, causing lacerations and a two (2) inch gash. (Id. ¶ 31.)
Plaintiff brings seven (7) claims. In Count I, he claims that Drs. Londis and Walters were deliberately indifferent in ignoring his mental health needs, in violation of the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973. (Id. ¶ 32.) In Count II, Plaintiff claims that Wardens Nash and Joseph Smith exhibited deliberate indifference in violation of the Eighth Amendment in failing "to preclude a policy of coercing Plaintiff to the general population." (Id. ¶ 33.) In Count III, Plaintiff claims Regional Director Ray's denial of Plaintiff's participation in the court recommended drug treatment program violated Plaintiff's rights under the ADA. (Id. ¶ 34.) In Count IV, Plaintiff claims that Lt. Gabrielson's use of excessive force, confiscation of Plaintiff's legal and religious materials, and imposition of sanctions prior to a disciplinary hearing violated Plaintiff's rights under the First, Fifth, Eighth, and Fourteenth Amendments. (Id. ¶ 35.) In Count V, Plaintiff claims that DHOs Bittenbender and Bunch "violated plaintiff's 'liberty interest' by the imposition of sanctions," and that R. Smith and Unit Manager Hollenbach "failed to consider Plaintiff's safety requirements." (Id. ¶¶ 36-37.) In Count VI, Plaintiff claims that Lt. Morales violated Plaintiff's rights under the Eighth Amendment and Reisinger violated his rights under the Fifth and Eighth Amendments. (Id. ¶¶ 38-39.) In Count VII, Plaintiff claims that Marr violated his rights under the Eighth Amendment. (Id. ¶ 40.) Plaintiff seeks declaratory, injunctive, and monetary relief. (Id. ¶¶ 42-49.)
Because Defendants move to dismiss and for summary judgment, where Plaintiff's claims are insufficient to survive a motion to dismiss, I will grant Defendants' motion on that ground; where Plaintiff has stated claims for which relief can be granted, I will examine those claims under the summary judgment standard, with reference to the exhibits that both parties have submitted.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, Plaintiff has not plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. ----, 127 S.Ct. 1955, 1960, 167 L.Ed.2d 929 (2007), or alleged "facts sufficient to raise a right to relief above the speculative level." Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 317 (3d Cir. 2007). In light of Federal Rule of Civil Procedure 8(a)(2), specific facts are not necessary; the statement need only "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam). "[T]he factual detail in a complaint [must not] be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8." Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).
In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994). The Court may also consider "undisputedly authentic" documents where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The Court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether the plaintiff will ultimately prevail. See id. In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of establishing that the plaintiff's complaint fails to state a claim upon which relief can be granted. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
II. Motion for Summary Judgment
Summary judgment is appropriate 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 judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All reasonable doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See Hersh v. Allen Prods. Co., 789 F.3d 230, 232 (1986). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. See Anderson, 477 U.S. at 256-57.
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 judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
Defendants argue that the claims for money damages against the individual Defendants in their official capacities and against the BOP are barred by the doctrine of sovereign immunity. While Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), allows claims for damages against federal agents, it does not allow claims for damages to be brought against federal agencies, such as the BOP, regardless of any waiver of sovereign immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994). And, actions against individuals in their official capacities are "in all respects other than name" suits against the government entity. Kentucky v. Graham, 473 U.S. 159, 166 (1985). As such, Plaintiff's official capacity claims are claims against the United States, which cannot be sued for money damages without an "unequivocally expressed" congressional waiver of sovereign immunity. United States v. Idaho ex rel. Director, Idaho Dep't of Water Res., 508 U.S. 1, 6 (1993); United States v. Testan, 424 U.S. 392, 400 (1976). The United States has not waived its sovereign immunity from suits for damages arising from constitutional violations. E.g., Keene Corp. v. United States, 700 F.2d 836 838 n.3 (2d Cir. 1983).
Further, the United States' sovereign immunity from suits for money damages has not been waived by the Rehabilitation Act, except in a situation not applicable here: when a federal agency is a "Federal provider of ... assistance" to state, local, and other entities outside the federal government that have discriminated in violation of § 504. Lane v. Pena, 518 U.S. 187, 191-92 (1996). Lane clarified that federal funding of entities "that the Federal Government manages itself," like, the Merchant Marine Academy in Lane, and the BOP here, does not bring "any act" of federal executive agencies within this narrow waiver of sovereign immunity. Id. at 194-95.
Therefore, I will grant Defendants' motion to dismiss the claims for money damages against the BOP and the individual Defendants sued in their official capacities.
II. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1996 (PLRA) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This requirement applies to all claims that arise in the prison setting. Porter v. Nussle, 534 U.S. 516, 532 (2002). Failure to exhaust administrative remedies under the PLRA is an affirmative defense that must be pleaded and proven by Defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002); Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). To exhaust his remedies under the BOP's administrative remedy procedure, set forth at 28 C.F.R. §§ 542 et seq., an inmate must take four steps: "(1) an informal resolution attempt, (2) the filing of a formal administrative remedy request with the Warden, (3) an appeal to the Regional Director, and (4) a final appeal to the BOP's General Counsel. No administrative appeal is considered to have been finally exhausted until a decision is reached on the merits by the BOP's General Counsel." Davis v. Miner, No. , 2007 WL 1237924, at *7 (M.D. Pa. Apr. 26, 2007) (citing 28 C.F.R. §§ 542.13 - 542.15).
Defendants concede that Plaintiff has exhausted his administrative remedies with respect to Counts III, IV, the portion of Count V dealing with housing assignments, and the portion of Count VI dealing with a falsified incident report number 1126369. (Defs.' Br. in Supp., Doc. 148, at 18.) They argue, however, that Howard has failed to exhaust administrative remedies with respect to Counts I, II, VII, and the remaining portions of Counts V and VI. (Id.) In support, they submit the declaration of Adam J. Ackley, the Attorney Advisor at the Consolidated Legal Center in Allenwood, Pennsylvania, based on his review of the official records of the BOP administrative remedy program, and Defendants have also submit the records on which Mr. Ackley's declaration is based. (Defs.' Ex. 1.)
A. Count I: Drs. Londis and Walters
Defendants' evidence shows that Howard filed three (3) requests for administrative remedies regarding these claims but that he failed to comply with procedural requirements for exhaustion as to each. First, he filed a remedy requesting transfer to a medical facility for psychological reasons, which was denied August 27, 2002; filed an appeal that was denied October 3, 2002; and did not file an appeal of this denial. (Decl. of Adam J. Ackley, May 29, 2007, Defs.' Ex. 1 ¶ 10(a))). Second, he filed, and after rejection, resubmitted, a remedy requesting access to mental health treatment, both which were rejected because Howard did not include a copy of his attempt at informal resolution; Defendants submit evidence that Howard did not appeal his rejection. (Id. ¶ 10(b)). Third, Defendants submit evidence that Howard filed a remedy requesting to be "unassigned" from work due to mental health issues; this request was denied and Plaintiff did not appeal. (Id. ¶ 10(c)).
B. Count II: Wardens Nash and John Smith
Defendants' evidence shows that no administrative remedy was sought regarding Plaintiff's claim in ...