United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, Magistrate Judge.
Lenelle Gray, a federal inmate in the custody of the Bureau of Prisons, brought the above-captioned action against the United States of America pursuant to the Federal Tort Claims Act. Gray's claims arise from an August 14, 2009 incident at the United States Penitentiary in Lewisburg, Pennsylvania, during which Gray was slashed with a razor by his cell mate, Andrew Bennett, resulting in Gray sustaining multiple lacerations on his face and torso, which required dozens of stitches to close. Gray alleges that the United States is liable for this attack, arguing that prison personnel were negligent in furnishing Gray's cell mate with the razor that was ultimately used as weapon, and in failing to collect the razor in accordance with mandatory prison policies governing the provision and collection of razors given to inmates for shaving.
This matter now comes before the Court on the plaintiff's motion for summary judgment on Gray's claims, which seeks judgment as a matter of law in favor of the plaintiff on this negligence claim. As we have previously noted for the parties, this case presents a factual dispute which must be resolved through trial, and does not entail a purely legal question that is amenable to a summary judgment disposition on an undisputed factual record. Accordingly, for the reasons that follow, we recommend that this motion be denied.
II. FACTUAL BACKGROUND
We have previously detailed the factual background of this case in our prior Report and Recommendation, which found that disputed issues of material fact precluded summary judgment for the defendant. (Doc. 65) At that time we noted that the plaintiff, Lenelle Gray is in federal custody following his conviction in the Northern District of Ohio for offenses relating to using a firearm in relation to a drug trafficking crime. Gray was sentenced to an aggregate term of imprisonment of ten years, ten months for this conviction, and is scheduled to be released from his federal sentence on October 5, 2015. On August 14, 2009, Gray was confined in the special management unit at the United States Penitentiary in Lewisburg, Pennsylvania.
USP-Lewisburg began accepting inmates into a "special management unit" program in 2009. Between 2002 and 2009, the SMU program was confined to one housing unit at the prison, which held approximately 100 inmates who were participating at any given time. Federal inmates may be designated for SMU programming if they have participated in disruptive geographical group or gang-related activities; if they had a leadership role in disruptive geographical group or gang-related activity; or if they have a history of serious or disruptive disciplinary infractions while incarcerated. In 2009, the Bureau of Prisons expanded the SMU program at USP-Lewisburg and it became an institution-wide program, which currently houses approximately 1, 200 inmates who are participating in the SMU program. The prison also has approximately 200 inmates who are in general population who serve as a work cadre for the institution.
Gray and another inmate, Andrew Bennett, were designated for SMU assignment and were both housed at USP-Lewisburg in 2009. On August 14, 2009, Gray was housed with Bennett in Z-Block at USP-Lewisburg. Gray and Bennett were both assigned to a cell on the first floor of the Z-Block from June 18, 2009, through the day of the August 14, 2009, assault and were housed in the same cell, Z-121, from July 27, 2009, through August 14, 2009.
Correctional Officer Scott Blue was assigned to the Z-Block evening watch as the First Floor Number One Officer, where Gray and Bennett were housed, from June 21, 2009, through September 21, 2009. Inmates in the SMU at USP-Lewisburg are permitted to use razors to shave three times per week. Correctional Officer Blue was responsible for passing out razors to the inmates in the Z-Block on Mondays, Wednesdays, and Fridays. Officer Blue has submitted a declaration in which he attests that it was his practice to walk down the range on the cell block with a box of razors on a cart and stop at each cell to ask the inmates if they wanted a razor to shave. Officer Blue represents that when he would distribute and collect razors, he would carry with him a list of inmate names on a form referred to as a "shower sheet." Officer Blue would provide a razor to an inmate and then place a check mark beside the inmate's name on the shower sheet. Approximately one hour later, Officer Blue would reverse this process, and collect a razor from each inmate who received one. Each time an inmate would return a razor to him, it was Officer Blue's practice to make certain that the blades were intact and to place an "X" beside the inmate's name who returned the razor. According to Officer Blue, he cannot recall any occasion when he was unable to collect all of the razors he passed out. However, if an inmate had refused to return a razor, Officer Blue states that he would have notified a lieutenant, and an incident report would have been issued.
Gray alleges that he and Bennett notified a correctional officer on the morning of Friday, August 14, 2009, that they were not getting along, that they needed to be separated, and that Bennett was going to harm Gray. According to Gray, the correctional officer responded that there was nothing he could do to address the situation, other than to notify the lieutenant. The lieutenant never came to speak with either Gray or Bennett about the issue. Later that same day, Gray and Bennett notified Officer Blue that they were continuing to have problems and that they wanted to be separated before Bennett harmed Gray; according to Gray, Bennett told Officer Blue that he wanted to be separated from Gray before he did "something stupid and hurt somebody." Upon receiving this information, Officer Blue told the inmates that the lieutenant had stated that he would have to wait until Monday to address the celling issue, when the Unit Team returned. Gray reiterated to Officer Blue the seriousness of the situation, and emphasized that he felt in imminent danger being confined with Bennett, who was repeatedly making threats against him.
On the evening of August 14, 2009, shortly after 6:30 p.m., and apparently after Gray and Bennett had notified him that they were at risk of having a physical altercation, Officer Blue was handing out razors to inmates who wished to shave. When he arrived at Gray's and Bennett's cell, Officer Blue asked whether the men wanted razors; Gray indicated that he did. When Officer Blue opened the food slot to the inmates' cell, Bennett struck Gray in the face with a razor, and the men immediately began to exchange blows and to wrestle. Officer Blue closed the food slot and called for assistance to help break up the fight. He then opened the floor range door to allow responding staff into the unit.
Correctional Officer Justin Foura was assigned to the second floor of Z-Block at USP-Lewisburg during the evening watch shift. Officer Foura responded to Officer Blue's assistance call regarding the fight between Bennett and Gray. When he arrived at the cell, Officer Foura observed that Gray and Bennett were standing face to face, and both men were covered in blood. Gray was bleeding from his face and the left side of his stomach, and was seen holding a rolled up newspaper in the form of a night stick. Officer Foura ordered the men to separate and get down on the floor, but according to his version of events, neither inmate moved. The officers dispensed pepper balls into the cells, releasing chemical agents. Thereafter, the inmates submitted to restraints. During the altercation, Officer Foura observed Bennett flush a razor blade down the toilet.
Lieutenant Tracey Hooper was assigned to Evening Watch Operations at USP-Lewisburg on August 14, 2009. Lieutenant Hooper also responded to Officer Blue's call for assistance. Lieutenant Hooper attests that when he arrived at cell 121, he witnessed the inmates engaged in a fight, and ordered them to submit to handcuffs. Lieutenant Hooper states that the men refused, and that Bennett subsequently attempted to block the food slot with a mattress. In spite of this, however, Lieutenant Hooper represents that he was able to launch multiple rounds into the cell with a pepperball launcher, which eventually caused the inmates to comply with demands to separate and submit to restraints. Lieutenant Hooper also saw Bennett flush a weapon down the toilet during this incident.
According to Gray and medical reports that the parties have submitted, during this affray, Gray sustained multiple lacerations to his torso and face, of varying degrees of severity. In total, Gray avers that his wounds required 70 stitches, and he was taken from USP-Lewisburg to an outside hospital after prison medical ...