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Bush v. Lewisburg U.S.P. Federal Prison

September 22, 2010


The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)


Plaintiff William E. Bush ("Bush"), a federal inmate formerly incarcerated at the United States Penitentiary at Lewisburg ("USP-Lewisburg"), initially filed this Bivens*fn1 action on November 3, 2008. (Doc. 1.) The matter is presently proceeding via a second amended complaint in which the following individuals are named as defendants: Troy Williamson ("Williamson"), Warden; G. Edinger ("G. Edinger"), Correctional Officer; John Adami ("Adami"), Unit Manager, J. Dunkleburger ("Dunkleburger"), Case Manager Coordinator; J. Cavanaugh ("Cavanaugh", Correctional Counselor; C. Shultz ("Schultz"), Correctional Officer; J.

Candelora ("Candelora"), Correctional Officer; T. Hooper ("Hooper"), Lieutenant; F. Strada ("Strada"), Correctional Services Administrator, Central Office (formerly an Associate Warden, USP-Lewisburg); E. Bradley ("Bradley"), Complex Captain, FCC Allenwood, (formerly Captain, USP-Lewisburg); R. Hoekman ("Hoekman");

Susan Heath ("Heath"), Mark Edinger ("M. Edinger"); and Bunch.*fn2 (Doc. 33.) Pending before the court is a motion to dismiss and for summary judgment filed on behalf of defendants. (Doc. 50.) For the reasons set forth below the motion to dismiss will be denied and the motion for summary judgment will be granted.

I. Motion to Dismiss

A. Allegations of the Complaint

On or about June 2006, Bush informed the lieutenant on duty that he needed to be placed in protective custody because he was being threatened with physical harm and pressured by inmates from the District of Columbia based on his cooperation with an "S.I.S." investigation. (Doc. 33, at 8, ¶¶ 1, 2.) He was immediately placed in protective custody.

In August 2006, he was approached by "two unknown S.I.S. officers" who informed him that they spoke with "shot callers" from the D.C. inmates contingent and the New York inmates group and that they arranged to pay the shot callers to be sure Bush was safe upon release to general population. (Id. at 9, ¶ 3.) He was told to "go out to the compound and do what S.I.S. Susan Heath and Mark Edinger been paying [him] for or rot back here in the hole and do the rest of [your] time back here cause [he] wasn't getting transferred [he] would die befor [sic] that." (Id.)

He refused to return to general population unless all the D.C. inmates were taken off the yard. (Id. at ¶ 4.) G. Edinger asked him why he was afraid to go back out to the compound and "whispered thew [sic] the door you don't want to make my brother [M. Edinger] angry Mr. Bush." (Id.) G. Edinger threatened to put a D.C. inmate in the cell with him. (Doc. 33, at 10, ¶ 5.) When Bush informed defendant Hooper of the threat by G. Edinger, he was told to "lay down and go to sleep." (Id. at 11, ¶ 8.) He states that he reported the threat and the poor treatment he was receiving from the special housing unit staff to defendant Strada and he was told to file a BP-8. (Id. at ¶ 12.) Bush also alleges that he filed a BP-8 and spoke to defendant Williamson concerning the threat and the poor manner in which he was being treated and he was told that he would get a response following an investigation. (Id. at ¶ 9.)

In September 2006, Williamson allegedly verbally informed Bush that his grievance was denied and he would be returned to general population. (Id. at ¶ 10.) He states that he handed his BP-9 to defendant Adami and that in October 2006, Adami told him that the Philadelphia Regional Office called USP-Lewisburg and "told [L]ewisburg to handle it." (Id. at ¶ 11.) Defendant Bradley allegedly told him that after the disposition of his BP-8 and BP-9, his only option was to return to general population. (Id. at 12, ¶ 13.)

In December, 2006, he was assaulted. (Id. at ¶ 14.) He states that he gave his BP-9, BP-10, and BP-11 complaining of the assault to defendant Cavanaugh. In February 2007, he alleges that defendant Cavanaugh informed him that all his requests for administrative relief were received by the appropriate offices and they were conducting an investigation. In March 2007, he asked defendant Dunkelberger why he was not being transferred. (Id. at 13, ¶ 15.) He informed Bush that the investigation was still pending which Bush alleges "was a lie they never received my administrative remedy requests I learned later in time." (Id.)

B. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the ...

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