United States District Court, M.D. Pennsylvania
EDWIN M. KOSIK, District Judge.
Before the court are plaintiff's objections to the Report and Recommendation of Magistrate Judge Thomas M. Blewitt dated August 9, 2013 (Doc. 74). For the reasons which follow, we will adopt in part and decline to adopt in part the Report and Recommendation of the Magistrate Judge.
Plaintiff, Scott Njos, an inmate confined at the United States Penitentiary-Lewisburg, Lewisburg, Pennsylvania, filed the instant Bivens civil rights action pursuant to 28 U.S.C. § 1331 on June 1, 2012. Following an extensive procedural history, which has been set forth in the Report and Recommendation, Defendants filed a Motion to Dismiss and for Summary Judgment on February 28, 2013 (Doc. 54). Defendants also filed supporting documents (Docs. 59 and 60). On April 29, 2013, Plaintiff filed his Brief in Opposition to Defendants' Motion, as well as supporting documents (Doc. 69).
On August 9, 2013, the Magistrate Judge filed a Report and Recommendation (Doc. 74), wherein he recommended that the Defendants' Motion to Dismiss and for Summary Judgment (Doc. 54) be granted in its entirety with respect to all of Plaintiff's claims. Plaintiff filed objections to the Report and Recommendation (Doc. 75), Exhibits (Doc. 77), and a Brief in Support of his Objections (Doc. 79). Defendants filed a Brief in Opposition to Plaintiff's Objections (Doc. 78).
When objections are filed to a Report and Recommendation of a Magistrate Judge, we must make a de novo determination of those portions of the Report to which objections are made. 28 U.S.C. § 636(b)(1)(C); see Sample v. Diecks , 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In doing so, we may accept, reject or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); Local Rule 72.3. Although our review is de novo, we are permitted by statute to rely upon the Magistrate Judge's proposed recommendations to the extent we, in the exercise of sound discretion, deem proper. United States v. Raddatz , 447 U.S. 667, 676 (1980); Goney v. Clark , 749 F.2d 5, 7 (3d Cir. 1984).
A. MAGISTRATE JUDGE'S REPORT
As the Magistrate Judge points out, the instant action revolves around incidents which occurred at plaintiff's cell in the SMU at USP-Lewisburg on April 24, 2012. Specifically, Plaintiff contends that on April 24, 2012, the "shake down crew" came to the cell he shared with inmate Stokes. When Plaintiff and Stokes were returned to their cell, they noticed that their belongings were missing. Plaintiff states that he was unwilling to give up his hand restraints until he spoke with a lieutenant or was given a property confiscation slip. Plaintiff asserts that he was grabbed by Defendant Prutzman and other officers and slammed into the floor. Plaintiff was placed in restraints from 12:30 p.m. until 8:00 a.m. the following morning. Plaintiff acknowledges being checked by staff during the period the restraints were in place. Plaintiff asserts that at the time the restraints were removed, his hand was painful, black and swollen and that he had blisters from the chain on his skin. At 9:00 a.m., Plaintiff was seen by Defendant, Dr. Pigos, who reviewed and cosigned Plaintiff's injuries, treatment and subsequent check-ups. At 1:00 p.m., Plaintiff saw Defendant, Dr. Edinger, who also cosigned Plaintiff's injuries, treatment and subsequent check-ups. Plaintiff was subsequently seen by medical personnel. Plaintiff states that on two occasions he was confronted by Defendant Prutzman, who made offensive and threatening remarks. Plaintiff also complains about the medical care he received while in restraints and subsequent to his release from the restraints.
The Magistrate Judge summarized the allegations set forth in Plaintiff's Complaint, as well as the evidence submitted by the parties. The Magistrate Judge then addressed each of Plaintiff's claims against the Defendants. As to Defendant Brenneman, a nurse and member of the Public Health Service, the Magistrate Judge found that Defendant Brenneman is entitled to absolute immunity on the Bivens claims, because he was acting as an employee of the Public Health Service within the scope of his employment. Thus, the Magistrate Judge found that the Plaintiff's exclusive remedy would lie under the Federal Tort Claims Act ("FTCA").
The Magistrate Judge next addresses the Defendants' argument that the undisputed evidence shows that the Plaintiff failed to exhaust his administrative remedies with respect to his constitutional claims. Specifically, the Magistrate Judge considered whether administrative remedies were available to plaintiff based on alleged threats by Defendant, Correctional Officer Prutzman. The Magistrate Judge concluded that the Defendants did not meet their burden of proving their affirmative defense of failure to exhaust administrative remedies and recommended that Plaintiff's constitutional claims should be permitted to proceed.
In ruling on Plaintiff's Eighth Amendment excessive force claims arising out of the April 24, 2012 incident, the Magistrate Judge found that summary judgment should be granted for all Defendants, except for Defendant Prutzman, with respect to Plaintiff's excessive force claim regarding his removal from his cell on April 24, 2012. Specifically, the Magistrate Judge held that no other Defendant, except Defendant Prutzman, was involved with Plaintiff's removal from his cell. While Defendant Argueta was present, Defendant Argueta was only involved in an altercation with Plaintiff's cellmate Stokes during the April 24, 2012 incident. The Magistrate Judge found that based on the record, no other Defendants were involved when Plaintiff was removed from his cell.
As to Defendant Prutzman, the Magistrate Judge found that the forced used by Defendant Prutzman on Plaintiff during the April 24, 2012 incident was not excessive. Specifically, the Magistrate Judge found that the force used by Defendant Prutzman was not an excessive use of force, since it was within the quantum of force necessary to respond to ...