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Bliss v. United States

United States District Court, M.D. Pennsylvania

September 8, 2014

UNITED STATES, et al., Defendants.


EDWIN M. KOSIK, District Judge.

Plaintiff, Neftali T. Bliss, files this matter as a combined Bivens-styled[1] complaint pursuant to 28 U.S.C. § 1331, and complaint under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Presently pending are motions to dismiss and for summary judgment filed by the United States and Bureau of Prisons (Doc. 20) and a group of the individual defendants (Doc. 21). Also pending is Plaintiff's motion for discovery (Doc. 53) and Defendants' motion for a protective order (Doc. 54). Plaintiff has also filed a motion to strike the exhibits submitted by Defendants United States and BOP in support of their motion to dismiss and for summary judgment (Doc. 61).[2] For the reasons which follow, the motions to dismiss will be granted only to the extent that Plaintiff will be afforded the opportunity to file an amended complaint limited to the claims included in his original complaint, but alleging facts in support of his general claim of conspiracy between the Defendants. All other pending motions will be dismissed as moot, and without prejudice to refile the motions, following the submission of an amended complaint.

I. Background

On May 14, 2013, this action was construed as a combined § 1331 civil rights action and action under the Federal Tort Claims Act. Named as Defendants are the United States, the Bureau of Prisons, 14 Doe Correctional Officers at the Low Security Correctional Institution at Allenwood, and the following LSCI-Allenwood employees: Warden Scism, Former Warden Strada, Assistant Warden Sauers, Captain Feltman, Former Unit Manager Netzband, Lieutenants Persing, Olshansky, Danner and Klinefelter, and Correctional Officers Thompson, Russell, Myers, Rohrer, Hause, Stephens, Schafer, Kresock, Laubaugh, Kline, Getz, Miller and Clester. Also named as Defendants are Physician's Assistant Peggy Moore, Health Services Administrator Spotts, Dr. Miller and SIA Agent Schantz.[3]

In the complaint, Plaintiff alleges that he arrived at LSCI-Allenwood on July 12, 2010. Plaintiff questioned why he was not assigned to a minimum security facility and requested to be relocated to a facility that reflected his custody classification points. His Unit Team explained that he had a "Management Variable For Greater Security." (Doc. 1, Compl. at 4.) Plaintiff claims this designation was placed on him without any justification, and there was an agreement between Defendants Thompson and Netzband to undermine his quality of living through all means available to them as his Unit Team and the officers working in the housing unit. (Id. at 4-5.) Defendants did not respond to his Inmate Requests challenging his classification, and told him there were no grievance forms. This took place from late July 2010 to late November 2010. (Id. at 5.)

Sometime between August and October of 2010, Plaintiff was taken to the Lieutenant's Office and informed that an anonymous threat was made on his life. Plaintiff stated he was unaware of any problems with anyone. He was returned to his cell and told to contact staff if he felt threatened. On November 22, 2010, he was again informed of an anonymous threat and placed in SHU protective custody while an investigation was conducted as to whether Plaintiff had been involved in a fight. Plaintiff claims that this was a fabricated accusation to deter him from challenging his custody classification. (Id. at 7.) When Defendant Myers escorted him to a cell, Plaintiff informed him that he had a bottom bunk pass due to a back problem. Myers told him there were no other bunks available and that he would have to sleep on a top bunk. (Id.) The following day, Plaintiff also told Defendant Rohrer about his health issues and his bottom bunk pass. He also informed Rohrer that he had slept on the floor the previous evening. Rohrer and the rest of the SHU staff did nothing about the matter. Requests for Request to Staff forms were ignored, but Plaintiff was told to use lined white paper to submit any requests.

On November 25, 2010, the Assistant Warden and a Lieutenant asked Plaintiff why he was lying on his cell floor. Plaintiff also sent cop outs to Defendant Persing. He believes Rohrer tampered with and delayed delivering his cop outs.

From November 26, 2010 to December 28, 2010, Plaintiff claims he was kept in his cell 24 hours a day and denied his one hour of recreation. Defendant Rohrer is alleged to have harassed Plaintiff, because he mentioned Rohrer's name to the Assistant Warden several days earlier. On December 2, 2010, Plaintiff was told to pick the mat up off the floor where he had been sleeping and put it back on the top bunk. He was threatened with sanctions by Rohrer if he did not comply. Defendant Hause also threatened him with "physical abuses." (Id. at 10.)

Plaintiff explained his medical restriction of top bunk and no lifting of over 15 pounds to Defendant Danner on or about December 3, 2010. He also informed him of the threats and abuses taking place. He was told to write to Defendant Persing. Plaintiff did so, but received no response. On December 23, 2010, Plaintiff spoke with Defendant Feltman about the above matters. No changes were made.

On December 25, 2010, Plaintiff believes he was punished when he received a Christmas Day meal different from those given to the other inmates. Plaintiff's meal consisted of undercooked chicken. Defendant Myers agreed and said he would contact Food Services. Defendant Olshansky came to retrieve the meal. No substitute meal was ever received.

On December 30, 2010, after 37 days of being forced to climb up to the top bunk, Plaintiff alleges that the pain and numbness in his back and legs became worse. He informed Defendants Hause and Stephens that he needed medical attention. They told him not to press the duress button again, and they failed to obtain prompt medical care for him. (Id. at 13.) However, a half hour later Defendants Hause, Stephens and Moore came to his cell. Moore said that he would need to be seen in the medical department, but did nothing for his pain. Plaintiff claims that when Hause cuffed him through the wicket, he did so with excessive force, compounding his injuries. (Id. at 14.) He believes Hause was retaliating against him.

Upon arrival at the medical room, Moore took his blood pressure and weighed him, but did nothing for his pain. The handcuffs were not removed and she told him he already had Ibuprofen for his pain. Defendant Stephens witnessed this conduct. Stephens thereafter escorted Plaintiff to his cell with excessive force. Later that day, Stephens applied handcuffs too tight and pushed Plaintiff up and down stairs when he took him to Defendant Persing's office. (Id. at 16.) When Plaintiff asked for grievance forms, Persing told him to "shut up." (Id.) He also claims that the injury assessment prepared by Moore was false.

Plaintiff was placed back in general population about January/February 2011. He claims that he was subjected to retaliatory actions for grievances he had filed. The conduct he refers to does not involve named Defendants. However, he claims that Defendants Netzband and Thompson were Unit Disciplinary Committee ("UDC") members, who reviewed incident reports against him and issued retaliatory sanctions against him in an effort to control his custody classification. (Id. at 21.)

In the Summer of 2011, Plaintiff was taken to the SHU pursuant to a fabricated misconduct. He does not allege that any of the named Defendants were involved in this move. He does state that after he was there, Defendant Thompson told him they could keep him in the SHU for 90 days, let him out, and then return him for another 90 day ...

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