United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY, District Judge.
Paul Peraza, an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania initiated this pro se action pursuant to the Federal Tort Claims Act (FTCA). Named as Defendant is the United States of America. An Amended Complaint (Doc. 37) was subsequently submitted.
This action regards events which purportedly transpired during Plaintiff's prior incarceration at the Canaan United States Penitentiary, Waymart, Pennsylvania (USP-Canaan). See Doc. 1, p. 4. According to the Amended Complaint, on May 11, 2011 USP-Canaan correctional officers including Schwartz verbally abused Plaintiff and identified him as being a child molester as the inmate was being escorted from his cell in the prison's Special Housing Unit (SHU). See Doc. 37, p. 4, ¶ 1. Thereafter, the officers allegedly physically assaulted Peraza to the extent that he required treatment at an outside hospital. Following that incident Plaintiff was purportedly labeled as being a child molester by other prisoners.
During the week of May 23, 2011 Plaintiff and his cellmate Inmate Anderson were put in an outdoor recreation cage with two Mexican gang members. One of the Mexican gang members told Plaintiff that two correctional officers Schwartz and Jenks were telling prisoners that Peraza was a child molester. Peraza indicates that he told the prisoner that he was being retaliated against for filing a complaint regarding the May 11, 2011 incident and when possible he would produce his sentencing paperwork to show that the two officers were lying.
On July 4, 2011 Plaintiff went to the recreation cage area without his cellmate. It is next alleged that Schwartz deliberately placed two inmates in a recreation cage with Plaintiff for the purpose of having those prisoners attack Peraza. The two inmates proceeded to assault Plaintiff based upon their belief that he was a child molester. As a result of this assault, Plaintiff suffered lacerations and bruising to the face and neck which required treatment at an outside hospital. The Amended Complaint adds that the assaults and the false labeling of Peraza as being a child molester has been covered up by prison staff and constitute negligence and breach of duty.
Presently pending is Defendant's motion to dismiss the Amended Complaint and/or in the alternative for summary judgment. See Doc. 38. The motion is ripe for consideration.
Motion to Dismiss
Defendant's pending dispositive motion in part seeks dismissal under Rule 12 (b)(1) & (6) 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 Defendant's motion. Thus, the 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 ...