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Bynum v. Thiroway

July 7, 2008

RASHA BYNUM, PLAINTIFF,
v.
B. THIROWAY, ET AL., : DEFENDANTS.



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

I. Introduction

Rasha Bynum, formerly a federal inmate, filed this Bivens*fn1 civil rights action alleging that while confined at the Schuylkill Federal Correctional Institution in Minersville, Pennsylvania, he was subjected to excessive force and thereafter denied adequate medical treatment in violation of the Eighth Amendment. Named as Defendants are the following current or former FCI-Schuylkill employees: Senior Office Specialists Brian Thiroway and Robert Schreffler, and Emergency Medical Technician Michael Kabonick. Presently pending before the Court is Defendants' Second Motion for Summary Judgment.*fn2 For the reasons that follow, the motion will be granted.

II. Statement of Facts

The following are the undisputed facts as set forth by Defendants. On October 28, 2004, Defendants Schreffler and Thiroway were assigned to report to the shower area in the Special Housing Unit at FCI-Schuylkill to obtain a radio from Plaintiff. Earlier in the day, the Associate Warden had ordered that a radio be removed from Plaintiff, as inmates are generally not permitted to keep personal property while they are confined in disciplinary segregation. See 28 C.F.R. § 541.21(C)(7). (Dkt. Entry 40, Ex. 1, Thiroway Decl., ¶ 6.) While Plaintiff does not dispute having a radio in his possession, he does dispute that the Associate Warden issued any such order. According to Plaintiff, a captain had told him earlier in the day he could keep the radio since he was going to be transferred to administrative segregation. (Dkt. Entry 44, Pl. Opp'n Br. at unnumbered p. 5.)

Defendants provide the following account of what transpired once they arrived at the SHU. (Dkt. Entry 40, Exs. 1-4.)*fn3 Upon arrival at the shower unit at approximately 3:35 p.m. to confiscate the radio, Schreffler and Thiroway requested Plaintiff to "strip out," but he refused. To avoid any confrontation, a pat search instead of a visual search was suggested. While speaking with Plaintiff, Defendants remained standing in the range, i.e., hallway, and Plaintiff was in the shower cell.

Plaintiff, who was already handcuffed behind his back, then stepped out of the shower cell toward Defendants, and was ordered by Defendants to face the wall opposite the shower cell. Schreffler then reached around Plaintiff's waist to begin a pat search in the area where the contraband was thought to be located. (Dkt. Entry 37; Dkt. Entry 40, Ex. 2, Schreffler Decl., ¶ 2.) During this time, Thiroway was holding Plaintiff's right arm. (Id., Ex. 1, Thiroway Decl., ¶ 10.) Defendants claim that Plaintiff suddenly thrust forward toward the wall and turned clockwise toward Thiroway and away from Schreffler. (Id. at ¶ 11; Ex. 2, Schreffler Decl., ¶ 4.) A struggle then ensued. Initially, Plaintiff, who, according to medical records, weighed 255 pounds, careened down range from the security camera recording the incident while in the grasp of Thiroway and Schreffler, who appear to be trying to wrestle him to the ground. Defendants assert that Plaintiff refused orders to "go to the ground." (Id., Ex. 1, ¶ 12.) The video recording appears to show Plaintiff kicking his leg up between Defendant Thiroway's legs. (Id., ¶ 13.) The group then careens down the range toward both the camera and the range "grill."*fn4 Plaintiff with Thiroway and Schreffler hanging on to him slams his head on the bars of the grill. (Id., ¶ 15.) The point of impact is not revealed on the video. After rebounding off the grill, Plaintiff ceased resisting and was taken to the ground, where he was subdued. According to Defendants, Plaintiff then began to shout threats of legal and personal retaliation. (Id., Ex. 1, ¶ 16.) At this point Defendants began securing Plaintiff's legs, arms and shoulders and Defendant Schreffler called for assistance on his radio. (Dkt. Entry 40, Ex. 2, Schreffler Decl., ¶ 5.) The entire episode lasted less than two (2) minutes. (Dkt. Entry 37.)

Immediately thereafter, Officer Stoshack arrived and assisted with securing Plaintiff.

Defendants Thiroway and Schreffler assisted Plaintiff to his feet, and escorted him through the range doors to the administrative detention side of the SHU. (Dkt. Entry 37; Dkt Entry 40, Ex. 1, ¶¶ 19, 20; Ex. 2, ¶¶ 6, 7.) While escorting Plaintiff, Schreffler noticed that Plaintiff was bleeding from his head. Plaintiff was given a towel and placed in a shower cell. (Id., Ex. 2, ¶ 8.) Schreffler then notified the medical staff and lieutenant. (Id.) Following his injury assessment, Plaintiff was placed in the disciplinary segregation section of the SHU. (Id., Ex. 1, ¶ 21.) Plaintiff continued to threaten staff later that day, and ultimately received an incident report for threatening bodily harm. (Id., ¶ 22; Ex. 4, Albert Decl., Attach. 2.)

Plaintiff, however, never received an incident report for possession of the radio, and Thiroway does not recall whether a radio was ever found in his possession. An internal BOP review was conducted regarding the October 28, 2004, use of force, and both Thiroway and Schreffler were cleared of any misconduct. (Id., ¶ 23; Dkt. Entry 15, Ex. 3.)

While Plaintiff would not initially allow staff to assess his injury, he eventually agreed to and received a physical examination immediately after the injury. (Dkt. Entry 40, Ex. 3, Kabonick Decl., ¶ 6.) It was noted that he suffered from injuries to the right frontal region of his head that were superficial in nature. (Id., ¶ 7.) There was some bleeding which was controlled with gauze. Plaintiff, who has tightly braided hair, stated that he had a laceration which was covered by his hair. He also complained of jaw pain, but no swelling or deformity was noted. (Id., ¶ 8.)

Two hours later, Plaintiff returned to Health Services and was re-examined. His injury appeared to be the same superficial injury as noted earlier. (Id., ¶ 9.) Some bleeding was evident and again treated with direct pressure and gauze. (Id.) In response to complaints of back and neck pain, Kabonick noted that no trauma was present.

Following Plaintiff's return to his cell, he continued to complain about bleeding from his head. The Clinical Director was notified and informed Plaintiff that he would be sent to Health Services and treated with 2% Xylocaine and epinephrine to restrict the blood flow. (Id., ¶ 11, Attach. 2.) At 7:30 p.m. the same evening, Plaintiff was taken to Health Services. At this time he was seen by Defendant Kabonick and it was noted that the wound appeared "grossly larger" than before. Plaintiff also refused treatment. (Id., ¶ 12, Attach. 2 at 30, 31.)

The following day, Plaintiff was seen for follow-up care with Health Services. It was at this time he reported being assaulted by two officers, and he complained of pain near his neck and left ear. He was diagnosed with a cut to the left side of the head and inflammation around the left ear. He was sutured and told to return to Health Services in a week.

In opposing Defendants' motion for summary judgment, Plaintiff simply submits an opposing brief. While he does not set forth a separate Opposing Statement of Material Facts, his brief clearly sets forth challenges to specific statements of fact provided by Defendants. Accordingly, the Court will liberally construe this portion of Plaintiff's brief to be his ...


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