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Peraza v. United States

United States District Court, M.D. Pennsylvania

March 28, 2017

PAUL PERAZA, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant

          MEMORANDUM

          RICHARD P. CONABOY United States District Judge.

         Background

         Paul Peraza, an inmate presently confined at the United States Penitentiary, Beaumont, Texas filed this pro se Federal Tort Claims Act (FTCA) complaint. Named as Defendant is the United States of America. Service of the Complaint was previously ordered.

         Plaintiff states that while previously confined by the Federal Bureau of Prisons (BOP) at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg) he was improperly placed in restraints on April 1, 2014, June 3, 2014, and July 31, 2014. See Doc. 1, ¶ IV (2). The Complaint contends that the initial use of ambulatory restraints on all three dates was unwarranted and they were applied out of sight from surveillance cameras because they “were purposefully placed on the plaintiff as tightly as possible to purposefully cause the plaintiff harm.”[1] Id. at (3). It is also alleged that despite the Plaintiff's complaints, prison officials including medical staff members refused to loosen the restraints causing him to suffer nerve damage and permanent scarring.

         Peraza elaborates that on April 1, 2014 prison officials placed him in ambulatory restraints as tightly as possible to teach him a lesson.[2] While those restraints were being applied, Peraza claims that he was choked by a correctional officer to keep him quiet while videotaping was being performed. After the restraints were applied, Plaintiff asserts that he was struck on the left side of his face by a correctional lieutenant. See id. at (6). After being in ambulatory restraints for a period of four (4) hours, the Plaintiff was allegedly transferred to overly tight four point restraints because he was making noise.[3] He purportedly remained in the four point restraints for six (6) hours until he was returned to ambulatory restraints for another eighteen (18) hours.[4]

         On June 3, 2014, Peraza contends that he was left in overly tight ambulatory restraints for fourteen (14) hours and was also purportedly struck on the chin by a correctional officer with a closed fist as those restraints were being applied. See Id. at (10). The Complaint adds that prison corrections and medical staff members ignored the inmate's requests to have the restraints loosened.

         Peraza similarly asserts that he was subjected to unnecessary physical abuse during a purportedly unwarranted July 31, 2014 application of ambulatory restraints which were again applied too tightly. He also alleges that staff ignored his requests for the restraints to be loosened. With respect to his allegation of excessive force, Plaintiff maintains that he was choked by an officer in an effort to keep him quiet. The Complaint adds that Peraza was subsequently placed in an unsanitary cell where he was forced to clean a toilet with his bare hands and denied opportunity to wash his hands prior to eating while in ambulatory restraints for twenty-eight (28) hours.

         Defendant has responded to the Complaint by filing a motion to dismiss or in the alternative for summary judgment. See Doc. 27. The opposed motion is ripe for consideration.

         Discussion Motion to Dismiss

         Defendant's 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 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 filing “is sufficient to place the parties on notice that summary judgment might be entered.”

         Summary Judgment

         Defendant argues that it is entitled to entry of summary judgment on the grounds that: (1) any constitutional claims against the Defendant are barred by the doctrine of sovereign immunity; (2) the discretionary function exception bars consideration of Peraza's claims since the BOP had cause to apply restraints on all three occasions at issue; (3) indisputable compelling evidence establishes that the restraints were properly and reasonably applied and Plaintiff's injuries were caused by his own conduct; (4) the undisputed evidence, especially the videotape footage, establishes that Plaintiff was not assaulted by correctional staff; and (5) this action cannot proceed because Plaintiff has no expert witness.

         Summary judgment is proper if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is “material” if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “genuine” only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992). Unsubstantiated arguments made in briefs are not considered evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993).

         Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial.” Celotex, 477 U.S. at 322-23. “‘Such affirmative evidence - regardless of whether it is direct or circumstantial - must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'” Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).

         FTCA

         The FTCA provides a remedy in damages for the simple negligence of employees of the United States. See United States v. Muniz, 374 U.S. 150, 150 (1963). Under the FTCA, sovereign immunity is waived against persons suing the federal government for the commission of various torts. See Simon v. United States, 341 F.3d 193, 200 (3d Cir. 2003).

         A plaintiff pursuing an FTCA claim must show: (1) that a duty was owed to him by a defendant; (2) a negligent breach of said duty; and (3) that the negligent breach was the proximate cause of the plaintiff's injury/loss. Mahler v. United States, 196 F.Supp. 362, 364 (W.D. Pa. 1961). The only proper Defendant for purposes of an FTCA claim is the United States of America. See 28 U.S.C. § 2679(d). Except for limited circumstances, an FTCA claim in federal court is limited to recovery of the sum certain amount requested in the underlying administrative claim. See McMichael v. United States, 856 F.2d 1026, 1035 (8th Cir. 1988).

         A federal district court addressing an FTCA action must apply the law of the state, in this case Pennsylvania, in which the alleged tortious conduct occurred. 28 U.S.C. § 1346(b) (1996); Toole v. United States, 588 F.2d 403, 406 (3d Cir. 1978); O'Neal v. Department of Army, 852 F.Supp. 327, 334-35 (M.D. Pa. 1994); Turner v. Miller, 679 F.Supp. 441, 443 (M.D. Pa. 1987). However, in cases such as this which involve federal prisoners, it has been ...


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