United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY United States District Judge.
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
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.” 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
elaborates that on April 1, 2014 prison officials placed him
in ambulatory restraints as tightly as possible to teach him
a lesson. 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. He purportedly
remained in the four point restraints for six (6) hours until
he was returned to ambulatory restraints for another eighteen
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.
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
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.
Motion to Dismiss
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.
Civ. P. 12(b)(d).
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
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.
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).
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.
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
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).
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