The opinion of the court was delivered by: Judge Rambo
Plaintiff Kareem Hassan Milhouse ("Milhouse"), a federal inmate currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania ("USPLewisburg"), filed a Bivens*fn1 action under 28 U.S.C. § 1331 on July 16, 2009 (Doc. 1), as amended on December 21, 2009 (Doc. 31), against a number of employees of USPLewisburg and the Bureau of Prisons ("BOP").*fn2 Milhouse's claims arise from the use of force during an incident which took place on May 14, 2009, and allegations that subsequently, he did not receive appropriate medical care for his alleged injuries.
Presently before the court is a partial motion to dismiss the amended complaint, and for summary judgment, filed by Defendants. (Doc. 53.) For the reasons that follow, the motion for summary judgment will be granted.
The following facts are undisputed except where noted. On the morning of May 14, 2009, USP-Lewisburg's Health Services staff evaluated Milhouse in order to get a baseline record of his health status, due to a belief that Milhouse was on a hunger strike.*fn3 (Doc. 65 ¶ 1; Doc. 76 ¶ 1.) Health Services staff noted Milhouse's vital signs and weight and counseled him on the consequences of being on a hunger strike. (Doc. 65 ¶ 2.)
Defendants assert that under BOP policy, inmates who are on a declared
hunger strike are normally single-celled so that medical staff can
accurately monitor their food intake. (Id. ¶ 3.) However, Milhouse claims that at 8:00 a.m. on
May 14, 2009, his case manager told him to "pack up, your [sic] being
moved to a cell with another inmate that's on a hunger strike so the
water could be turned off." (Doc. 76 ¶ 2.) Milhouse informed his case
manager that he was not currently on a hunger strike, and requested
that the unit's surveillance cameras be reviewed in order to confirm
that he had been consuming his meals since May 12, 2009.*fn4
(Doc. 76 ¶ 2.)
Later that same morning, Defendant Lieutenant Jordan was notified that Milhouse was refusing to be moved to another cell. (Doc. 65 ¶ 4.) Lieutenant Jordan then spoke personally with Milhouse, who repeatedly refused the orders to move to another cell. (Id. ¶ 5.) Milhouse claims he told Lieutenant Jordan during this conversation that he was no longer on a hunger strike, as he had been taking his meals since May 12, 2009. (Doc. 76 ¶ 3.)
During Lieutenant Jordan's visit to the cell, Milhouse's cellmate refused to speak with him, and both inmates refused to submit to hand restraints. (Doc. 65 ¶ 6.) As a result of this refusal, a use of force team was assembled to remove Milhouse and his cellmate from the cell. (Id. ¶ 7.) In connection with this, Health Services informed Lieutenant Jordan that inmates should not be subjected to chemical agents.
(Id. ¶ 8.) Instead, Lieutenant Jordan secured authorization to introduce foam rubber baton rounds utilizing an L-8 projectile launcher should the cellmates continue to the refuse the order. (Id. ¶ 9.)
At approximately 11:30 a.m., Lieutenant Jordan and the use of force team approached Milhouse's cell. (Doc. 76 ¶ 4.) At that time a staff member from the psychology department attempted to speak with Milhouse and his cellmate in an effort at confrontation avoidance; however, these efforts were not effective. (Doc. 65 ¶ 10.) Lieutenant Jordan then gave both inmates another direct order to submit to restraints, but both inmates refused this direct order. (Id. ¶¶ 11, 12.) Lieutenant Jordan noted that Milhouse stood at the back wall of the cell and his cellmate climbed onto the top bunk and laid down. (Id. ¶ 13.) Lieutenant Jordan warned the inmates that he would use the non-lethal munitions if they did not comply with the order to submit to restraints. (Id. ¶ 14.) Milhouse claims that he told Lieutenant Jordan that he was no longer on a hunger strike. (Doc. 76 ¶ 4.) Lieutenant Jordan then told staff to open the cell door's slot, and he shot four rounds of the foam baton into the cell. (Doc. 65 ¶ 15; Doc. 76 ¶ 4.) Three rounds were directed at Milhouse, who moved to the bottom bunk under his mattress. (Doc. 65 ¶ 16.) One round was directed at his cellmate who was still on the top bunk. (Id. ¶ 17.)
After these shots were fired, the inmates continued to refuse to submit to hand restraints. (Id. ¶ 18.) As a result, the use of force team entered the cell and ambulatory restraints were applied to both inmates. (Doc. 65 ¶ 19; Doc. 76 ¶ 5.) Milhouse was not compliant during this process, refused to walk, and had to be carried to another cell by the use of force team. (Doc. 65 ¶¶ 20, 21.) However, Milhouse's cellmate was compliant and walked to a new cell assignment. (Id. ¶ 22.) Milhouse asserts that his new cell contained only a metal bedframe, and was soiled with feces, urine, and "other identified substances." (Doc. 76 ¶ 5.) He remained in that cell overnight and was removed from restraints on May 15, 2009. (Doc. 64-2, Attach. 5, at 41.)
In support of their motion for summary judgment, Defendants have also provided the court with videotape footage of the May 14, 2009 cell extraction, which, pursuant to court order, has been filed under seal.*fn5 (Doc. 58.) The contents of the videotape footage reveal the following. Two teams of five corrections officers gathered outside the SMU to perform the extraction at 11:38 a.m. The officers on the extraction teams wore protective gear, including pads, vests, and helmets with face shields. Lieutenant Jordan spoke to the camera, stating that the purpose of the extraction was to remove Milhouse and his cellmate from their cell due to the cellmates' refusal to move to another cell in order to monitor Milhouse's hunger strike and confirming the authorization by Warden Bledsoe. Each member of the teams then introduced him or herself and stated his or her duty. An equipment check was performed and the teams exited the room to travel to the SMU.
When the teams reached the cell, Milhouse was at the door, but quickly moved to the cell's back window when he saw the teams. His cellmate came to the door and told the staff member attempting confrontation avoidance that he would not submit to restraints. Milhouse refused to speak with staff and remained in the back of the cell. After the confrontation avoidance staff member backed away from the door, Lieutenant Jordan asked both inmates to come to the door to cuff up. He asked them four times, and included a "final" order to cuff up. He then opened the cell door tray slot and pointed the foam baton launcher into the cell. He again ordered the inmates to come to the door to cuff up or they would be shot. He then shot one round in the direction of Milhouse and told the inmates two more times to come to the door to cuff up. They refused, and he shot another round in the direction of Milhouse's cellmate, who had climbed to the top bunk. Lieutenant Jordan then told them again to come to the door to cuff up, shot a third round into the cell, told them to cuff up, shot a fourth round into the cell, and then retreated from the door. Subsequently, Lieutenant Jordan directed both extraction teams to enter the cell. At this point, the footage does not reveal the specific actions of the teams in securing both inmates because of the number of officers in the small cell, and also because most members of the teams had their backs to the camera. The footage does show Milhouse's cellmate voluntarily submitting to ambulatory restraints, but it is not possible to see Milhouse for several minutes in the back of the cell while his cellmate is being cuffed up.
Once Milhouse's cellmate is restrained, the footage shows Milhouse face down on the floor towards the back of the cell with restraints around his ankles. Five men are surrounding him and there is no clear view of Milhouse beyond his feet. After several minutes, the extraction team picks him up and places him in a seated position facing the camera while one team member continues to adjust his restraints. Milhouse is then brought to a standing position and Lieutenant Jordan enters the cell to check the restraints of both inmates. In addition, a PA enters the cell to check the restraints.
At this point, both extraction teams exit the cell with the inmates. The first team walks Milhouse's cellmate out of the cell. The second team, however, carries Milhouse face down, holding his legs and arms. The teams travel down a set of stairs with the inmates to another floor in the cellblock. When they arrive at the new cell for Milhouse's cellmate, they place Milhouse on the floor, face down. As the other team prepares to place Milhouse's cellmate in a new cell, Milhouse can be heard saying, "I told you you'll have to kill me in this [expletive] man, you'll have to kill me in here eventually, you'll have to. Because I ain't going for none of this [expletive]. Mail me out in a box, man." Once Milhouse's cellmate is secured in a new cell, the second team picks up Milhouse by the arms and legs again and they travel down another set of stairs. Milhouse can again be heard saying, "Mail me out in a box, man." When the team takes a break on the stairs, Milhouse says, "Drop me. I told you, mail me out." When the team arrives at a new cell for Milhouse, initially at least six or seven individuals can be seen entering the cell with Milhouse. Most members of the team have their backs to the camera, but when they exit the cell, it is possible to see that Milhouse had been left in the cell, face down with restraints still applied to his hands. There does not appear to be anything on the walls or floor. The footage then ends with the teams traveling back to the unit office for a debriefing.
After being transferred to new cells, both inmates were examined by Defendant PA Hemphill. (Doc. 65 ¶ 23.) PA Hemphill noted that Milhouse had an "approx. 2cm area of superficial abrasion x 3 on his abdomen, with similar areas on his left forearm and right posterior leg." (Id. ¶ 24; Doc. 64-2, Attach. 3.) Defendants state that no first aid was necessary and Milhouse was advised to follow up at sick call as needed. (Doc. 65 ¶ 25.) Milhouse, however, counters that he asked PA Hemphill to examine him and Hemphill's response was, "we don't do that here." (Doc. 76 ¶ 6.) He asserts that he showed PA Hemphill his bleeding wounds, and Hemphill stated, "soap & water." (Id. ¶ 6.) He was then left in the ambulatory restraints in the dry cell with no water. (Id.)
Milhouse was examined multiple times by Defendant PA Potter on May 14, 2009, and several times over the next month by various medical providers, and treated for the complaints he presented. (Doc. 65 ¶ 26; Doc. 76 ¶ 7; see also Doc. 64-2, Attach. 4.) Milhouse asserts that on May 15, 2009, he requested medical attention for his wounds from Defendant PAs Navarro and Fasciana, who were in the unit visiting other inmates, but they simply exited the unit without providing assistance. (Doc. 76¶ 8.)
Further, Milhouse asserts that on May 20, 2009, while Defendants Bledsoe, Rear, Passaniti, Maiorana, and Brown were making administrative rounds in the unit, Milhouse showed them his wounds which he claims were open, bleeding and pussing.
(Id. ¶ 9.) Defendants Bledsoe and Rear have submitted declarations specifically denying that either one of them witnessed those wounds. (Doc. 64-2, Attachs. 6, 7.) Milhouse also asserts that he submitted numerous requests to staff, including some Defendants, about the lack of medical treatment and the use of force upon him, and explained again that he was not on a hunger strike at the time of the incident on May 14, 2009. (Doc. 76 ¶ 10.) ...