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Bistrian v. Levi

July 29, 2010


The opinion of the court was delivered by: Rufe, J.


Plaintiff Peter Bistrian brings the instant action against Federal Detention Center ("FDC") prison officials and medical staff, and the United States of America, alleging violations of his First, Fifth, and Eighth Amendment rights, in addition to claims under the Federal Tort Claims Act*fn1 ("FTCA"). Plaintiff's claims arise out of his placement in the Special Housing Unit ("SHU") on four separate occasions while detained in FDC Philadelphia. Now before the Court are Defendants' three Motions to Dismiss*fn2, addressing each of the remaining eighteen counts in Plaintiff's Second Amended Complaint*fn3. These Motions are now ripe for disposition.


Plaintiff first entered FDC Philadelphia as a pre-sentence inmate on August 20, 2005.*fn4 He was first transferred out of general population and into the SHU*fn5 on or about November 17, 2005, for allegedly violating Bureau of Prison ("BOP") telephone regulations.*fn6 Plaintiff was held in administrative segregation until December 9, 2005, when he presented his case before a disciplinary hearing officer.*fn7 Plaintiff then received a thirty (30) day disciplinary segregation,*fn8 which he does not challenge in his instant Complaint. Upon his release from SHU on January 9, 2006, Plaintiff was again accused of violating the telephone rules and regulations and was placed back in the SHU for administrative segregation on January 25, 2006.*fn9 He remained there for 308 days.*fn10 Plaintiff identifies Defendants Levi, Brown, Blackman, Knox, McLaughlin, Garraway, Gibbs, Jezior, Bergos, and White as the FDC officials responsible for discussing, on a weekly basis, the status of the SHU inmates and whether any should be released back into the general prison population.*fn11

During this second period of segregation, other SHU inmates violently assaulted Plaintiff on two separate occasions. The first attack was perpetrated by fellow SHU detainee Steve Northington, an inmate with several prior violent criminal convictions.*fn12 In April or May of 2006, Northington asked Plaintiff, who was then assigned as an orderly in the SHU, to pass notes along to other detainees.*fn13 Plaintiff complied, and then informed Defendant FDC officers Gibbs, Bowns, Jezior, and Bergos of the request.*fn14 The Federal Bureau of Investigation ("FBI") expressed interest in the communications being passed between Northington and other detainees who were implicated in an unrelated Philadelphia drug gang prosecution, and instructed Plaintiff to continue acting as a courier for inmates Northington, Kaboni Savage, Derek Russell, and one other unidentified detainee.*fn15 Plaintiff was told to bring all intercepted correspondence to the Special Investigative Services ("SIS") office at FDC Philadelphia, where Defendants would photocopy them and forward the notes to the FBI.*fn16

Plaintiff passed several notes between his co-detainees.*fn17 On one occasion, however, when Plaintiff brought a note to Defendants for photocopying, Defendants placed the photocopy back in the delivery envelope instead of the original.*fn18 Plaintiff asserts that the intended recipient of the note recognized it as a photocopy and immediately realized Plaintiff's cooperation with Defendants.*fn19 Plaintiff alleges that he then began to receive multiple threats from the inmates against whom he had cooperated; he further alleges that he repeatedly informed Defendants of these threats.*fn20 On June 30, 2006, in the recreation yard, Plaintiff was severely beaten by Northington and two other SHU inmates.*fn21 Plaintiff alleges that Defendants appeared indifferent and waited several minutes to intervene and separate the assailants.*fn22

On July 6, 2006, Defendants provided Plaintiff with an administrative detention order, citing "security reasons" for Plaintiff's status of confinement in the SHU.*fn23 On July 27, 2006,

Plaintiff pleaded guilty to six counts of federal wire fraud and two counts of failure to appear.*fn24

While awaiting sentencing, the second attack occurred on October 12, 2006, also in the recreation yard.*fn25 While Plaintiff was in hand restraints, waiting to be let in from the yard, inmate Aaron Taylor (an inmate with a history of violently attacking fellow detainees) approached him waving a "manufactured razor-blade style weapon, repeatedly slashing and cutting [Plaintiff's] face, arms, and legs."*fn26 FDC Philadelphia prison officials, including but not limited to Defendants Knox, Acker, and Dempsey, first attempted to stop the attack by using chemical agents, but resorted to the use of a Tactical Blast Stun Munition, which incapacitated Taylor.*fn27 Plaintiff was transported to a local hospital, where he received treatment for the cuts.*fn28 Plaintiff alleges that, despite several requests, Defendants did not subsequently allow him to see a medical doctor until November 9, 2006, when he was examined by Defendant medical staff members Reynolds, Dalmasi, and Kaiser.*fn29

He further alleges that the medical staff refused to treat him on that day, informing him that "he was going to have to be 'creative' at physical rehabilitation due to his confinement in the SHU."*fn30

As a result of the two violent attacks, Plaintiff alleges that he sustained serious injuries, including but not limited to "possibly permanent scarring and nerve damage; loss of feeling in his lower left leg and foot; a finger in his right hand that cannot be closed; chronic back pain; lower back spasms; headaches; a dislocated shoulder; broken and chipped teeth; loss of hearing in his right ear; and severe mental, emotional, and psychological injuries . . . ."*fn31 Plaintiff adds that, while housed in the SHU, Defendants were deliberately indifferent to his medical needs.*fn32

Plaintiff was released from his second administrative segregation on December 8, 2006, but was returned to the SHU for the third time on December 22, 2006; he remained there until January 25, 2006.*fn33 Plaintiff claims that FDC Philadelphia officials removed him from the general population and returned him to the SHU due to the presence of one of his June 30 assailants in the same unit.*fn34

On August 10, 2007, Plaintiff avows that Defendant Boardman learned from Dr. Stephen E. Samuel, a forensic psychologist, that Plaintiff suffered from Post-Traumatic Stress Disorder and Dysthymic Disorder resulting from his confinement and the two assaults in the SHU.*fn35

Dr. Samuel later testified to that effect at Plaintiff's first sentencing hearing.*fn36 On September 12, 2007, Plaintiff's counsel requested, by email, a copy of BOP regulations from the Government, explaining that Plaintiff contested the allegations of telephone abuse reported at the sentencing hearing.*fn37 Plaintiff claims that the email was forwarded to the prosecutor at FDC Philadelphia.*fn38 The following day, Plaintiff was placed in the SHU for the fourth time, and remained there until December 4, 2007.*fn39 FDC officials issued an administrative detention order the same day, citing the investigation of Plaintiff's violation of telephone rules as the reason for confinement.*fn40 Also on September 13th, Plaintiff had a hearing in front of the Unit Discipline Committee ("UDC"), where he received "a suspended sanction of a loss of phone privileges for 60 days."*fn41 Defendants continued to keep Plaintiff in the SHU despite a plea by his counsel to release him.*fn42 Plaintiff further claims that Defendant Levi threatened him during the fourth confinement, stating that he "would not see the light of day again."*fn43 Plaintiff states that any confessions regarding telephone violations were the result of coercion by FDC prison officials and staff, who informed him that he would not be released from the SHU unless he confessed .*fn44

Plaintiff alleges that, for all four periods of confinement in the SHU, he "filed a BOP Form 8 as an administrative grievance / request for administrative remedy."*fn45 He further alleges that, instead of addressing his Form 8 grievances, Defendants ignored them and retaliated against him by searching his cell and seizing the documents.*fn46 In addition, Defendants refused to discuss the grievance process, asserted that it was unnecessary to file the forms, and failed to provide Plaintiff with the appropriate forms when requested.*fn47 Moreover, Plaintiff accuses Defendants of failing to follow the BOP regulations regarding proper procedures for placing inmates in administrative segregation: these include providing an inmate with an administrative detention order, investigating the alleged violations which resulted in the confinement in SHU, conducting a disciplinary hearing, and imposing formal sanctions.*fn48

On March 14, 2008, Judge Jan E. DuBois sentenced Plaintiff to fifty-seven (57) months imprisonment and ordered him to pay approximately $680,000 in restitution.*fn49 Plaintiff filed his original Complaint in the instant case on June 27, 2008. Plaintiff amended his Complaint twice; the Second Amended Complaint contains eighteen counts:*fn50 Counts I-V relate to alleged violations of Plaintiff's Fifth Amendment substantive due process rights; Counts VI-IX arise under the Eighth Amendment; Count X is a First Amendment retaliation claim; and Counts XII-XIX are FTCA claims against the United States.*fn51


Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal of any claim wherein the district court lacks subject matter jurisdiction.*fn52 When considering a 12(b)(1) motion, the court "review[s] only whether the allegations on the face of the complaint, taken as true, allege sufficient facts to invoke the jurisdiction of the district court."*fn53 When subject matter jurisdiction is challenged under 12(b)(1), the plaintiff must bear the burden of persuasion.*fn54

As a general rule, "[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit."*fn55 The FTCA is one area in which the United States has waived its sovereign immunity; ...

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