United States District Court, M.D. Pennsylvania
ANDREW WOLTERS, Plaintiff.
UNITED STATES OF AMERICA, ET AL., Defendants.
RICHARD P. CONABOY, District Judge.
This pro se action which asserts both Bivens-type civil rights and Federal Tort Claims Act (FTCA) claims was initiated by Andrew Wolters during his confinement at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg).
Named as Defendants are the United States of America and three USP-Lewisburg officials: Warden Thomas; Lieutenant Randy Johnson; Counselor Matt Edinger; as well as various John Doe correctional officials.
Plaintiff states that he was subjected to a sexual assault by correctional officers including Lieutenant Johnson and Counselor Edinger or about September 27, 2011. Wolters also claims that Johnson used racial slurs during the purported attack. Thereafter, Plaintiff claims that he was denied proper medical treatment for his resulting serious medical injuries which included an anal fissure.
The Complaint also include vague claims of retaliation including assertions that chemical agents are being sprayed into his cell; he has been issued false misconducts; suffered loss of personal property and legal documents; and denial of medical treatment for a lung infection and shortness of breath.
Defendants have responded to Plaintiff's action by filing a motion to dismiss or in the alternative for summary judgment. See Doc. 32. Plaintiff thereafter filed a cross motion for summary judgment. See Doc. 39.
Motion to Dismiss
Defendants' pending dispositive motion is supported by evidentiary materials outside the pleadings. Federal Rule of Civil Procedure 12(d) provides in part as follows:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given reasonable opportunity to present all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(b)(d).
This Court will not exclude the evidentiary materials accompanying the Defendants' motion. Thus, their motion will be treated as solely seeking summary judgment. See Latham v. United States , 306 Fed.Appx. 716, 718 (3d Cir. 2009)(when a motion to dismiss has been framed alternatively as a motion for summary judgment such as in the present case, the alternative ...