United States District Court, M.D. Pennsylvania
CLARENCE D. SCHREANE, Plaintiff
ROBERT MARR, et al., Defendants
RICHARD CAPUTO United States District Judge
Clarence D. Schreane, a federal inmate formerly housed at the
United States Penitentiary at Lewisburg (USP-Lewisburg), in
Lewisburg,  Pennsylvania, commenced this
Bivens action on June 19, 2015. Named as
defendants are the following USP-Lewisburg employees:
Corrections Counselor Robert Marr; Disciplinary Hearing
Officer (DHO) B. Chambers; T. Lynn; Corrections Counselor
Diltz; Supervisory Correctional Systems Specialist D.
Olsheskie; and Paramedic Sarah Dees. Mr. Schreane alleges
that Defendants were deliberately indifferent to his serious
medical needs, impaired his access-to-the-courts, issued him
a retaliatory misconduct and denied him due process at his
pending is Defendants' motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b) and motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56(a).
(ECF No. 21.) Also pending before the Court is Mr.
Schreane's motion for Declaratory Judgment (ECF No. 34),
Motion for Extension of Time (ECF No. 52), and Motion for an
Order (ECF No. 69).
reasons set forth below, the motion to dismiss will be denied
and the motion for summary judgment will be granted. Mr.
Schreane's additional motions will be denied as moot and
summary judgment will be issued in favor of the Defendants.
Standards of Review
pending dispositive motion is captioned as a motion to
dismiss and motion for summary judgment. (ECF No. 21.) It is
supported by evidentiary materials outside the pleadings. Mr.
Schreane's opposition to Defendants' motion is
entitled “Plaintiff's Objection to Defendant Motion
for Summary Judgments” and also relies on materials
outside of the pleadings. (ECF No. 44.)
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). Based on the above, Defendants'
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
Rule of Civil Procedure 56 sets forth the standards and
procedures for granting a motion for summary judgment.
Summary judgment is proper where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The court must determine “whether
the pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits show that there is no
genuine issue of material fact and whether the moving party
is therefore entitled to judgment as a matter of law.”
MacFarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271
(3d Cir. 2012)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)).
“[T]his standard provides that the mere existence of
some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 - 48, 106 S.Ct. 2505, 2509 - 10,
91 L.Ed.2d 202 (1986).
“material” fact is any fact that might affect the
outcome of a suit under the governing substantive law.
Gonzalez v. Sec'y of Dept. of Homeland Sec., 678
F.3d 254, 261 (3d Cir. 2012). An issue of material fact is
“genuine” if supported by evidence such that a
reasonable jury could return a verdict in the non-moving
party's favor. Id. at 248, 106 S.Ct. at 2510.
reviewing a motion for summary judgment, the court must view
all facts and draw all reasonable inferences “in the
light most favorable to the party opposing the motion.”
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265
(3d Cir. 2014)(internal quotation marks omitted). To prevail
on summary judgment, the moving party must affirmatively
identify those portions of the record which demonstrate the
absence of a genuine issue of material fact. Santini v.
Fuentes, 795 F.3d 410 (3d Cir. 2015) (citing
Celotex, 477 U.S. at 323, 106 S.Ct. 2553). If this
burden is met, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to
material facts.” Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (citation
and internal quotation marks omitted). Rather, the party
opposing summary judgment “must set forth specific
facts showing that there is a genuine issue for trial.”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001)(citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986)). Failure to properly support or
contest an assertion of fact may result in the court
considering the fact undisputed for the purpose of the
motion. Fed.R.Civ.P. 56(e).
Statement of Material Facts
the pleadings, declarations and exhibits submitted therewith,
the following facts are ascertained as undisputed or, where
disputed, reflect Mr. Schreane's version of the facts,
pursuant to this Court's duty to view all facts and
reasonable inferences in the light most favorable to the
nonmoving party. Anderson, 477 U.S. at 255, 106
S.Ct. at 2510.
Schreane was housed at USP-Lewisburg from July 6, 2011
through July 3, 2013, and then again from October 2, 2013
through July 22, 2015. (ECF No. 32, Defs.' Statement of
Material Facts (DSMF), ¶ 2.) He has a disciplinary
history that includes, but is not limited to: refusing
orders; threatening bodily harm; disruptive conduct;
possession of a dangerous weapon; and making sexual
proposals/threats. (DSMF ¶ 3.)
Mr. Schreane's Disruptive Behavior and
Calculated Use of Force Event
February 20, 2014, at approximately 11:45 a.m., Counselor
Marr approached Mr. Schreane in his cell to return legal mail
he had tried to send out without postage. During the
discussion, Mr. Schreane became agitated and threatened
Counselor Marr and his family with violence. (DSMF ¶ 5.)
Mr. Schreane stated “if you think I am playing fucking
games with you, your family will find out what fucking games
are when my people get in contact with them, then we will see
what fucking games are.” (ECF No. 32-1, Incident Report
2550915, p. 34.) Due to Mr. Schreane's disruptive
behavior, his display of imminent violence and not being in
control of himself physically or emotionally, the Acting
Warden was notified and authorized staff to place Mr.
Schreane in ambulatory restraints. (DSMF ¶ 6; ECF No.
32-1, pp. 26 - 29.) A use of force team was assembled to
conduct the calculated use of force of extracting Mr.
Schreane from his cell and placing him in ambulatory
restraints. (Id.) The event was videotaped. ECF No.
32-1, p. 28.)
the cell extraction and application of restraints, a health
services staff member (J. Robertson) performed an injury
assessment of Mr. Schreane. (DSMF ¶ 23; ECF No. 32-1,
pp. 31 - 32.) No significant findings or apparent distress
was noted. (Id.) It was noted that the ambulatory
restraints were applied appropriately to permit adequate
blood flow to the inmate's extremities, and that Mr.
Schreane sustained no injuries and offered no chief
accordance with BOP Program Statement (PS) 5666.06 (ECF No.
32-1, pp. 47 - 69), prior to any calculated use of force, the
ranking custodial official, a designated mental health
professional, and others confer and gather pertinent
information about the inmate and the immediate situation.
Based on their assessment of that information, they identify
staff to attempt to obtain the inmate's voluntary
cooperation, and using the knowledge they gained about the
inmate and the incident, determine if use of force is
necessary. (DSMF ¶ 7.) The policy authorizes staff
“to apply physical restraints necessary to gain control
of an inmate who appears to be dangerous because the inmate:
(a) Assaults another individual; (b) Destroys government
property; (c) Attempts suicide; (d) Inflicts injury upon
self; or (e) Becomes violent or displays signs of imminent
violence.” (DSMF ¶ 11.) Pursuant to the policy
“[r]estraints should remain on the inmate until
self-control is regained.” (DSMF ¶ 12.) Restraints
are not to be used in a manner to cause unnecessary physical
pain or extreme discomfort. (DSMF ¶ 13.) When applied,
“staff will use sound correctional judgment to ensure
unnecessary pressure is not applied to the inmate.”
(DSMF ¶ 15.) “Ambulatory restraints are defined as
approved soft and hard restraint equipment which allow the
inmate to eat, drink, and take care of human basic needs
without staff intervention.” (DSMF ¶ 14.)
Fifteen-minute scheduled checks are required for inmates
place in restraints. (DSMF ¶ 16.) Two-hour scheduled
checks by Lieutenants are required and “qualified
health personnel ordinarily are to visit the inmate at least
twice during each eight hour shift.” (DSMF ¶ 18
and ¶ 24.)
Marr issued Mr. Schreane Incident Report 2550915 following
the incident and calculated use of force. (DSMF ¶ 8.)
Plaintiff was kept in ambulatory restraints from 1:00 p.m.
until 8:00 p.m. on February 20, 2014. (DSMF ¶ 9 and
¶ 10.) In accordance with the BOP's restraint
policy, staff made fifteen-minute checks on Mr. Schreane
while he was in restraints. Fifteen-minute checks were
completed between 1:06 p.m. and 8:00 p.m. (DSMF ¶ 17;
ECF No. 32-1, pp. 38-39.) At one point in time Mr. Schreane
is alleged as saying “That counselor had it
coming.” (Id., p. 39.) The required two-hour
Lieutenant checks were also completed in accordance with
policy. (DSMF ¶ 19; ECF No. 32-1, pp. 41 - 42.) During
each two-hour Lieutenant check, Mr. Schreane was offered use
of the toilet. (DSMF 32; ECF No. 32-1, pp. 41 - 42.) A
Lieutenant checked Mr. Schreane's restraints at 2:00
p.m., 4:00 p.m., 6:00 p.m. and at 8:00 p.m. when they were
removed. (DSMF ¶ 20.) Mr. Schreane was agitated,