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Brown v. Kemmerer

United States District Court, M.D. Pennsylvania

January 3, 2017

JOSEPH A. BROWN, Plaintiff
v.
C.O. KEMMERER, et al., Defendants

          MEMORANDUM

          SYLVIA H. RAMBO United States District Judge

         Background

         On August 4, 2014, Plaintiff Joseph A. Brown, an inmate (number 09401-007) incarcerated at the United States Penitentiary at Allenwood, White Deer, Pennsylvania, filed a complaint pursuant to 28 U.S.C. § 1331 setting forth claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403U.S. 388 (1977) and the Federal Tort Claims Act (“FTCA”) regarding incidents which occurred at the United States Penitentiary, Lewisburg, Pennsylvania, (“USP-Lewisburg”), on and after April 12, 2013.[1] Brown alleged in pertinent part as follows, including the grammatical errors:

On April 12, 2013, the plaintiff was violently placed in restraints by (C.O.) Kemmer and other staff members for his refusal to accept a cellie. As a result, the plaintiff suffers nerve damage to both hands with a loss of feeling and numbness. The plaintiff also has permanent scars of keloids around his wrist, waist, and ankles due to the beating, and tightness of the restraints used as weapons. The plaintiff also suffered additional trauma after he was forced to urine, and defecate on his self. This went on for several days.

(Doc. 1-1, “Supplemental Complaint” attached to the complaint(Doc. 1.), at 2 (Statement of Claim)). Along with the complaint Brown filed a motion to proceed in forma pauperis. (Doc. 2.) In the motion to proceed in forma pauperis Brown stated under penalty of perjury that prior to the filing of the complaint he did not file 3 or more actions or appeals in a court of the United States that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted.

         Named as defendants were the United States and Correctional Officer Kemmerer. (Docs. 1 and 1-1.) As relief, Brown requested compensatory damages in the amount of $3, 000, 000 and punitive damages in amount to be determined by a jury. (Doc. 1, at 3.)

         On October 27, 2014, the Defendants filed a motion to dismiss and/or for summary judgment. (Doc. 15.) A statement of material facts and a supporting brief were filed on November 10, 2014. (Docs. 16 and 17.) After an amended complaint was filed by Brown on February 20, 2015, naming 23 additional individual defendants, all who were employed at USP-Lewisburg, the Defendants' motion to dismiss and/or for summary judgment was deemed moot. (Docs. 32, 35 and 38.) The amended complaint essentially set forth the same claims as the original complaint and requested the same relief.

         Defendants were served with the amended complaint, and after being granted an extension of time, Defendants filed a motion for summary judgment on July 14, 2015. (Doc. 51.) Defendants argued that summary judgment should be entered in their favor because Brown failed to properly exhaust his administrative remedies for both his Bivens and FTCA claims. By memorandum and order of January 28, 2016, the court granted the motion as it related to Browns' FTCA claim and denied the motion as it related to Browns' Bivens claim without prejudice to the Defendants refiling the motion after a period of discovery relating solely to the issue of exhaustion of administrative remedies. See Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010); see also Messa v. Goord, 652 F.3d 305, 308-309 (2nd Cir. 2011) and cases cited therein (no right to a jury trial on factual disputes regarding an inmate's failure to exhaust administrative remedies).

         After a period of discovery, Defendants filed a motion for summary judgment in which they argued that Brown failed to exhaust administrative remedies. (Doc. 90.) On October 31, 2016, Defendants notified the court that they were withdrawing the motion because there were material issues of fact in dispute and they requested an evidentiary hearing. On November 9, 2016, the court directed the parties to notify the court within forty-five (45) days if they would consent to the referral of this matter to a Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1) for an evidentiary hearing and decision regarding whether or not Brown exhausted administrative remedies. On November 18, 2016, Plaintiff informed the court that he would not consent to such a referral. Although the court was unable to refer this matter to a Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1) because of the lack of consent from Plaintiff, the court on November 22, 20016 referred the matter to a Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)) on the issue of exhaustion of administrative remedies and for the submission of a report and recommendation. The matter was assigned to Magistrate Judge Arbuckle. As of this date a hearing has not been held.[2]

         Recently, Brown filed two new civil cases.[3]Upon review and screening of those two cases it was determined that although Brown stated in motions to proceed in forma pauperis that he did not have three strikes under the Prison Litigation Reform Act, an electronic search on PACER revealed that the claim was false. The court will again enumerate those strikes.

         On September 15, 2011, Brown (inmate number 09401-07) filed a civil rights complaint in the United States District Court for the Eastern District of California. Brown v. United States of America, et al., No. 1:11-CV-01562-MJS. On May 31, 2013, a fifth amended complaint filed in that action by Brown was dismissed for failure to state a claim upon which relief can be granted and it was specifically stated in the order that “the dismissal shall count as a strike under 28 U.S.C. § 1915(g)[.]” Brown v. United States of America, et al., No. 1:11-CV-01562-MJS, slip op. at 12 (E.D.Ca. May 31, 2013)(Doc. 58).

         On February 6, 2012, Brown (inmate number 09401-07) filed a civil rights complaint in the United States District Court for the Eastern District of California. Brown v. United States of America, et al., No. 1:12-CV-00165-AWI-GSA. On November 13, 2014, Brown's complaint was dismissed for failure to state a claim upon which relief can be granted and it was specifically stated in the order that the “dismissal is subject to the “three strikes' provision set forth in 28 U.S.C. § 1915(g)[.]” Brown v. United States of America, et al., No. 1:12-CV-00165-AWI-GSA, slip op. at 2 (E.D.Ca. Nov. 13, 2014)(Doc. 63).

         On December 19, 2013, Brown (inmate number 09401-07) filed a civil rights complaint in the United States District Court for the Central District of California. Brown v. Profitt, et al., No. 5:13-CV-02338-UA-RZ. On March 3, 2014, Brown's application to proceed without prepayment of the full filing fee was denied and the complaint dismissed for failure to state a claim upon which relief can be granted and it was stated that the dismissal would constitute a strike under 28 U.S.C. § 1915(g). Brown v. Profitt, et al., No. 5:13-CV-02338-UA-RZ (C.D.Ca. Mar. 7, 2014)(Doc. 3)(order re motion for leave to file action without prepayment of full filing fee).[4] For the ...


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