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Little v. Mottern

United States District Court, M.D. Pennsylvania

March 8, 2017

MICHAEL R. LITTLE, et al., Plaintiffs
v.
B. MOTTERN, et al., Defendants

          MEMORANDUM

          KANE JUDGE.

         I. Background

         On May 19, 2014, Plaintiffs Michael R. Little and Kareem H. Milhouse, inmates confined at the United States Penitentiary at Lewisburg, Pennsylvania (“USP-Lewisburg”), filed the instant civil rights action pro se pursuant to 28 U.S.C. § 1331, the Federal Tort Claims Act (“FTCA”), and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).[1] The same day the court issued its Standing Practice Order which advised Little and Milhouse, inter alia, of their briefing obligations under the Local Rules of Court. (Doc. Nos. 5, 6) Attached to the Standing Practice Order were copies of the pertinent Local Rules. Plaintiff Little was authorized to proceed with this case under the in forma pauperis provision of the Prison Litigation Reform Act (“PLRA”)[2] and Defendants enumerated herein waived service of the complaint.

         Plaintiff Milhouse was terminated from this action on October 7, 2014, because he had three prior actions dismissed under 28 U.S.C. § 1915(e)(2), and he could only proceed without paying the full filing if he was under imminent danger of serious physical injury. (Doc. No. 38.) By memorandum and separate order of September 2, 2015, the court determined that Milhouse was not under imminent danger of serious physical injury at the time he filed his complaint and dismissed Milhouse's claims for failure to pay the filing fee. (Doc. Nos. 116, 117.) Milhouse filed a motion for reconsideration under Rule 60 of the Federal Rules of Civil Procedure. Milhouse claimed that he did not have three strikes at the time he filed this action.[3] By order of April 26, 2016, the court granted Milhouse's Rule 60 motion. (Doc. No. 161.) The court also denied without prejudice a pending motion to dismiss and/or for summary judgment (Doc. No. 120) which only addressed Little's claims. (Id.) The court indicated that the Defendants could refile within 60 days a motion which addressed both the claims of Little and Milhouse. (Id.) On June 28, 2016, the court extended the deadline for filing such a motion to July 11, 2016.[4]

         The action is proceeding on the basis of a third amended complaint filed by Little and Milhouse on September 2, 2014, raising claims under Bivens and the FTCA. (Doc. No. 35.) The third amended complaint is handwritten in a small, rambling, single-spaced script. (Id.) The third amended complaint focuses on three groups of defendants. (Id.) It also primarily focuses on two periods of time. (Id.) The allegations in the third amended complaint are disjointed. The court will first list the defendants and then set forth the allegations in a chronological and coherent manner.

         The first group of defendants was allegedly involved in incidents which occurred during May through August, 2014, and consists of the following individuals employed at USP-Lewisburg: (1) Brandon Mottern, Correctional Officer; (2) Hamsa Boussag, Correctional Officer; (3) Jerald Loyek, Correctional Officer; (4) Jeffrey Butler, Associate Warden; (5) J.E. Thomas, Warden; (6) James Eck, Correctional Officer; (7) Daniel Dowkus, Lieutenant; (8) James Diltz, Correctional Counselor; (9) Suzanna Heath, Special Investigations Agent; (10) Frederick Entzel, Captain; and (11) Brent Taggart, Deputy Captain. (Id. at 1.)

         The second group of defendants consists of the following individuals employed at the United States Penitentiary at McCreary, Pine Knot, Kentucky (“USP-McCreary”): (1) J.C. Holland, Warden; (2) Angela Hubbard, Correctional Officer; and (3) Trinity Middleton, Correctional Officer. (Id.)

         The third group of defendants consists of the United States and the Federal Bureau of Prisons. (Id.) The third amended complaint does not set forth any allegations specifically directed at the United States or the Federal Bureau of Prisons. The apparent basis for naming the United States is that it is allegedly liable under the FTCA for wrongful acts committed by prison staff at USP-Lewisburg and USP-McCreary. However, the court will summarily dismiss the case as it relates to the Federal Bureau of Prisons because claims against a federal agency are not cognizable under the FTCA or Bivens. FDIC v. Meyer, 510 U.S. 471, 473 (1994); Dambach v. United States, 211 F. App'x 105, 108 (3d Cir. Dec. 19, 2006); 28 U.S.C. § 2679(a).

         With respect to the first group, it is alleged in the third amended complaint that on May 7, 2014, when Defendant Diltz was performing rounds at approximately 1:15 p.m. on the cell block where Little was housed, Little asked him for an administrative remedy form (BP-8) but Diltz denied the request. (Id. at 5.) The next day, May 8, 2014, at approximately 5:05 p.m., Defendants Mottern, Boussag and Loyek came to the cell shared by Milhouse and Little, and Mottern ordered them to “cuff up cock sucking rat bastards . . . yeah I read y'all files.” (Id. at 2.) Plaintiffs allege that Boussag then stated “Hurry Rats today” (Id. at 2, 4) and Loyek also stated: “Y'all can't hide here with all that snitching. This Lewisburg. This ain't SHU. Y'all at the Big House.” (Id. at 3.) Milhouse and Little claim that the statements were “loudly [stated] on [the cell] tier and other inmates heard” the statements and as a result other inmates began threatening them and spreading the information to inmates in other cell blocks. (Id. at 1.)

         Milhouse claims that after he was removed from his cell on May 8, 2014, that Mottern while escorting him to a shower stated: “Do something guy. I'll fuck you up.” (Id. at 2.) As they approached the shower Milhouse claims Mottern pushed him inside and stated: “I'll roll you like a turd. . . This is a new program with new lieutenants and new procedures . . . we don't bullshit.” (Id.) Milhouse claims that Mottern locked the shower and left but after 15 minutes returned with Boussag at which time Milhouse states he was placed in paper clothes and then handcuffed. (Id.) Milhouse alleges that Boussag then “became overly aggressive and belligerent” and stated “Fuck you, the courts and your lawyer mother.” (Id.) As the shower door was opened, Milhouse claims that Boussag grabbed his penis and testicles and stated: “I molest fagots like you little dick motherfucker.” (Id.) Milhouse then claims he was slammed to the floor by Mottern and Boussag, and Mottern sat on his back while Boussag “stuck an object inside [his] rectum, and stated “cum now motherfucker.” (Id.) Milhouse then alleges that Mottern subsequently “fabricated [an] incident report which was expunged[.]” (Id.)

         Little claims that when he was removed from the cell on May 8, 2014, he was escorted to the shower area and Boussag patted him down and squeezed his private parts and “boasted how [the] government trained him, he got big guns (sic) and if he catch (sic) Plaintiff(s) in Pennsylvania he'll kill them.” (Id. at 4.)

         After the incident of May 8, 2014, Plaintiffs allege that they requested grievance forms from prison staff and apparently attempted to file grievances. (Id. at 4-5.) The court will subsequently review the alleged attempts by Plaintiffs to file grievances after completing a review of their allegations regarding being labeled as informants, verbal threats and being assaulted physically. The court will, however, review at this point attempts at filing grievances where there were alleged attempts by prison official to discourage such filing.

         Little claims that on May 14, 2014, he submitted sensitive administrative remedy forms to the Regional Office[5]regarding the incident of May 8, 2014, but that those forms were destroyed by Defendant Diltz. (Id. at 4-5.)

         Little alleges that on May 15, 2014, he requested a administrative remedy form from Defendant Diltz who was performing rounds on the cell block where he was housed. (Id.) Little alleges he needed the form to grieve incidents which occurred at USP-McCreary and that Diltz denied the request and stated as follows: “Fuck that start new. You not at McCreary no more! . . . You keep fucking filing bullshit on staff!” (Id.) Little claims that Diltz destroyed an administrative remedy form relating to the May 8, 2014, incident and that his refusal to provide him with an administrative remedy form was retaliatory in order to prevent him from filing a civil complaint. (Id.)

         Plaintiffs allege that (1) on May 18, 2014, at approximately 9:30 p.m., Defendant Eck came to their cell and stated as follows: “Y'all keep fucking telling the warden on my coworkers sooner or later that shit gonna catch up to y'all!” (Id. at 4) and (2) on May 19, 2014, Boussag approached their cell and stated that it was their fault because they disrespected his coworkers and further stated as follows:

So we just reacted and now your telling the fucking warden, Region Director and Office of Inspector General. That don't mean shit. I gonna make you so miserable that your (sic) going to kill yourself. Your (sic) suicidal. I will fuck with your food, your mail won't go out. You won't get the phone. I know inmates is (sic) after you and I heard them threaten you, because your (sic) a fucking rat. Sooner or later y'all will be in the very same rec[reation] cage[.]”

(Id. at 2-3.)

         Little alleges that on May 20, 2014, he requested an administrative remedy form from Defendant Diltz who was performing rounds on the cell block where he was housed. (Id. at 5.) Little alleges Diltz denied the request and stated as follows: “I ain't giving you shit “Boy” to file on staff! Fuck your safety! Stop bitching!” (Id.) Little further claims that Diltz refused to let him file for protective custody “due to the rat label[.]” (Id.)

         Little claims that on May 21, 2014, that he reported to Defendant Heath the alleged misconduct of staff and the taunts and threats he “gets from inmates” as the result of being labeled a snitch. (Id. at 5-6.) Little claims that Defendant Dowkus was eavesdropping on that conversation and that subsequently Dowkus approached Plaintiff Milhouse and stated as follows: “Find yourself another cellmate. I'm moving Little.” (Id. at 6.) Little then alleges that he was confronted by Dowkus who told him: “I'm moving you on 3rd floor or general population with other inmates. I know your whole case. [] I been here a long time. I got a lot of pull! You don't know me. You pointing the finger that's not how you get stuff done. Now if you want to start pointing the finger it will be hard.” (Id.) Little claims Dowkus was threatening to put him in a situation where he would be harmed because of he reported alleged staff misconduct. (Id.)

         Little claims that on May 23, 2014, he was approached by Defendant Boussag who told him: “Your time is coming.” (Id. at 3.)

         Little alleges that on May 30, 2014, he requested an administrative remedy (BP-8) form from Defendant Diltz who was performing rounds on the cell block where he was housed. (Id. at 5.) Little alleges Diltz denied the request and stated as follows: “Nigger! I ain't giving you shit to file on staff!” (Id.) Little alleges that subsequent to that statement a counselor by the name of, J. Yayda, who is not named as a defendant, arrived at his cell door at which time Little alleges he asked counselor Yayda for an administrative remedy form (BP-8) because Diltz would not give him one. (Id.) Little alleges that Yayda told him “that's between you two” and Diltz subsequently asked Yayda “Is Little still rat bitching?” (Id.) Little claims that as a result of referring to him as a “rat” he received taunts and threats from other inmates. (Id.)

         Little alleges that on June 5, 2014, he requested an administrative remedy form from Diltz but the request was denied and Diltz stated “I ain't giving you shit to file on!” (Id.) Little then alleges that a correctional officer by the name of Klusner, who is not named as a defendant, “tried to coerce [him] not to make more attempts to get [administrative remedy forms] to file on Lewisburg staff” for the incident of May 8, 2014. (Id.) Little alleges that Klusner stated that Little had “pissed a lot of people off coming here, that's why Diltz [refused] to give [him administrative remedy forms].” (Id.) Little further claims that Klusner told him “just lay down and let this stuff go.” (Id.)

         Little claims that on June 20, 2014, he was placed in a recreation cage with other inmates and assaulted by those inmates and that Defendant Boussag paid the inmates to assault him. (Id. at 4.) Little also alleges that on the same day Boussag escorted him to the basement for a haircut and during that encounter Boussag stated: “Yeah you got your ass whooped I told you and Milhouse that I will have your enemies put inside your rec[reation] cage. Milhouse lucky he didn't go out. Its (sic) more days his turn coming. (sic) Its (sic) far from over.” (Id.)

         Little alleges that on June 23, 2014, he gave Diltz a administrative remedy form (BP-8) relating to the sensitive administrative remedy forms he submitted on May 14, 2014. (Id. at 5.) Little also claims that on July 2, 2014, he gave Diltz a administrative remedy form (BP-8) relating to the June 20, 2014, assault. (Id.) Little claims he did not receive a reply with respect to either the June 23 or the July 2, 2014, administrative remedy forms, and that on July 15, 2014, he asked Diltz why he had not received a reply and Diltz “confessed to destroying [the administrative remedy forms].” (Id.)

         The final allegation relating to assaultive behavior relates to an incident which occurred on August 23, 2014. (Id. at 2.) On that date at approximately 5:30 p.m., it is alleged that Correctional Officer Hagenbunch, who is not named as a defendant, approached Milhouse's cell and told Milhouse and his cellmate[6] to submit to hand restraints. (Id.) Milhouse was then escorted to the shower area at which point it is alleged that Boussag punched Milhouse on the left side of his face and “mashed his face into the shower stall gate, which caused a split over top his left eye that bleed (sic) profusely.” (Id.) After being returned to his cell Milhouse claims he requested medical attention but a correctional officer, who is not named as a defendant, denied the request and stated as follows: “I'm not calling medical so you can get an assessment. I know how you make accusations in that shower.” (Id.)

         The court will now address the allegations by Plaintiffs against Defendants who were not involved in the incidents where Plaintiffs allegedly were labeled as informants, received verbal threats and were assaulted physically.

         Plaintiffs state that they sent requests to Warden Thomas and Associate Warden Butler on May 8, 19 and 20, 2014, but they did not respond to their requests. (Id. at 3.) There are no allegations that Warden Thomas or Associate Warden Butler were involved in any of the alleged incidents of labeling Plaintiffs as informants, verbal threats or assaultive behavior. (Id.)

         Plaintiffs claim Defendant Heath “was well aware of threats of bodily harm/snitch taunts to (Little) notifying Heath in many request to staff via prison mail, verbally in initial screening 4-28-14/5-21-14 in quay” and “Heath failed to reply/protect plaintiff.” (Id. at 4.) Likewise, Plaintiffs in a conclusory manner claim that Defendants Entzel and Taggart were well aware of the incidents. (Id.)

         With respect to the second group of defendants, Little claims that while confined at USP-McCreary that Defendant Hubbard on December 24, 2013, fabricated an incident report. (Id. at 6.) The incident report allegedly charged Little with masturbating when Hubbard was doing rounds and appeared at Little's cell door. (Id.) Little claims that Hubbard asked Defendant Middleton to remove him from the unit but that Little subsequently had the incident report expunged based on a surveillance tap which “prove[d] Hubbard lied[.]” (Id.) Little also appears to allege that Middleton told District Columbia inmates that Little was an informant which resulted in Little being assaulted at USP-McCreary. (Id.)

         As relief Plaintiffs request compensatory and punitive damages in the total amount of $120, 000, 00.00 and the issuance of permanent injunction directing that they not be confined in a federal facility and that defendants be prosecuted.[7] (Id. at 7-8.)

         On June 20, 2016, Plaintiff Little filed a motion for summary judgment and on June 27, 2016, a statement of material facts and a supporting brief. (Doc. Nos. 165, 167, 168.) On July 11, 2016, Defendants filed motions to dismiss and/or for summary judgment. (Doc. Nos. 174, 175.) Supporting briefs, statements of material facts and evidentiary materials were filed by Defendants on July 25, 2016. (Doc. Nos. 178, 179, 180, 181.)[8] On August 10, 2016, the court issued an order granting a motion for extension of time filed by Defendants. (Doc. No. 185.) The order provided that Defendants would have fourteen (14) days from the date the court decided Defendants' motions to dismiss and/or for summary judgment to respond to Plaintiff Little's motion for summary judgment. (Id.) On August 12, 2016, Plaintiff Little filed a brief in opposition to Defendants' motion to dismiss and/or for summary judgment. (Doc. No. 186.) Little's brief consists of two pages and does not respond to Defendants' arguments. (Id.) Little also did not respond to Defendants' statement of material facts or present any evidentiary materials in opposition to those submitted by Defendants. On August 29, 2016, Defendants filed a reply brief (Doc. No. 194) with respect to Little's brief in opposition.

         On August 15, 2016, Plaintiff Milhouse filed a motion for summary judgment and a supporting brief. (Doc. Nos. 189, 190.) Milhouse did not file a statement of material facts in support of his motion or any evidentiary materials. On September 1, 2016, Defendants filed a brief in opposition to Plaintiff Milhouse's motion for summary judgment. (Doc. No. 195.) Plaintiff Milhouse did not file a reply brief. Consequently, Defendants' motions to dismiss and/or for summary judgment and Plaintiff's Milhouse's cross-motion for summary judgment are ripe for disposition.[9]

         The Defendants filed a motion to dismiss and/or for summary judgment with respect to Little's claims (Doc. No. 174) which became ripe on August 29, 2016, and a second such motion (Doc. No. 175) with respect to Milhouse's claims which became ripe on August 17, 2016.

         With respect to Little's claims, Defendants argue that the court should dismiss his claims or in the alternative grant summary judgment in their favor for the following reasons: (1) Little filed the complaint in this action on May 19, 2014, only eleven days after the incidents involving the USP-Lewisburg Defendant occurred, and consequently, he failed to exhaust administrative remedies concerning his civil rights claims; (2) Little filed no administrative tort claims concerning his claims under the Federal Tort Claims Act before he commenced this lawsuit; and (3) this court lacks personal jurisdiction over Defendants Holland, Hubbard, and Middleton. As stated above in support of the motion with respect to Little's claims, Defendants filed a statement of material facts in accordance with Local Rule 56.1. That rule provides as follows:

A motion for summary judgment filed pursuant to Fed.R.Civ.P. 56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraph set forth in the statement required in the foregoing paragraph; as to which it is contended that there exists a genuine issue to be tried.
Statement of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.

M.D. Pa. LR 56.1 (emphasis added). A standard practice order was issued on May 19, 2014, which advised Little and Milhouse of the requirements of several Local Rules of Court, including Local Rule 56.1. (Doc. Nos. 5, 6.) Little did not respond to Defendants' statement of material facts in accordance with Local Rule 56.1.

         As for Milhouse's claims, Defendants as stated filed a motion to dismiss and/or for summary judgment along with a statement of material facts. Milhouse did not file a brief in opposition or a response to Defendants' statement of material facts. Defendants argue that the court should dismiss Milhouse's claims or in the alternative grant summary judgment in their favor for the following reasons: (1) Milhouse failed to exhaust administrative remedies with respect to his claims under Bivens; and ...


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