United States District Court, M.D. Pennsylvania
a civil action initiated upon the filing of a complaint in
this matter on January 4, 2017, by pro se prisoner
Plaintiff Alireza Bakhtiari (“Bakhtiari”),
seeking to recover monetary damages against a total of
twenty-one (21) Defendants under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2671 et seq.,
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1977), 42 U.S.C. §
1985, 42 U.S.C. § 1986, and the Freedom of Information
Act (“FOIA”). The Court has conducted a screening
review of the complaint in accordance with 28 U.S.C. §
1915A and 28 U.S.C. § 1915(e)(2). For the reasons that
follow, the Court will dismiss Plaintiff's complaint in
part and permit Plaintiff the opportunity to file an amended
January 4, 2017, Bakhtiari, a federal inmate currently
confined at the York County Prison located in York,
Pennsylvania, filed a 19-count, 47-page complaint under 28
U.S.C. § 1331, asserting federal and state law claims
against 21 Defendants named in their individual and official
capacities, including: 13 prison officials employed at the
Federal Correctional Institution at Allenwood, Pennsylvania
(“FCI-Allenwood”); 5 Middle District of
Pennsylvania Assistant United States Attorneys
(“AUSA's”); 2 Bureau of Prison
(“BOP”) administrators; and the United States of
events forming the basis of Plaintiff's complaint
occurred while Plaintiff was interned at FCI-Allenwood. The
crux of Plaintiff's complaint concerns his cellmate
assignment. Specifically, Plaintiff alleges that he was
“brutalized, battered and physically and
psychologically tortured” by FCI-Allenwood employees
(“Allenwood Defendants”),  and by his
assigned cellmate, Champaign (whom Plaintiff labels a
white-supremacist), because of his Iranian nationality. (Doc.
No. 1 at 12-13.) Bakhtiari claims that the Allenwood
Defendants intentionally placed him in this cell in
retaliation for comments he made about certain prison staff.
(Id.) Specifically, Plaintiff alleges that the
Allenwood Defendants instructed Champaign to torture him
because of Plaintiff's nationality and as a result of
having called the Allenwood Defendants “rejects.”
(Id.) Fearing for his life, Plaintiff alleges that
he repeatedly pleaded with the Allenwood Defendants to allow
him to switch cells, but with no success. (Id. at
11-15.) The tension within the cell continued to escalate
until January 9, 2016, when Plaintiff finally convinced
Allenwood Defendants Martin and Felton to remove him from the
cell and place him in a temporary holding cell. (Id.
examining him and finding no signs of physical marks or
abuse, the Allenwood Defendants proceeded to introduce
Plaintiff back into the cell with Champaign. However,
Plaintiff, still hand-cuffed, began resisting their efforts
to secure him in the cell out of fear that Champaign would
assault him. (Id.) Plaintiff avers that the
Allenwood Defendants responded to Plaintiff's resistance
by throwing him to the concrete floor, breaking his glasses,
and assaulting him. (Id. at 15.) Plaintiff alleges
he was then taken to the “dry-room to be chained and
tortured.” (Id. at 16.)
to Plaintiff, after spending at least 18 hours in the
“dry-room, ” the Allenwood Defendants took him
back to the cell with Champaign. (Id.) Plaintiff
alleges that after the Allenwood Defendants placed him in the
cell and walked away, Champaign punched Plaintiff in the face
and continued to punch him in the head and face until
Champaign “became tired.” (Id. at 18.)
That next morning, Allenwood Defendant Slokum came to
Plaintiff's cell and informed him that he was being
transferred to a different cell. (Id.) Plaintiff
alleges that when he was finished packing, Champaign stated
“Well[, ] [Defendant] Lozano asked me for this favor
when I came here, I better deliver” and then began
punching Plaintiff again. (Id.) Plaintiff avers that
despite the visible signs of blood, bruises and wounds on
him, the Allenwood Defendants refused to provide him with
necessary medical attention. (Id. at 19.)
addition to Plaintiff's allegations relating to his cell
assignment, Plaintiff also alleges that Allenwood Defendant
Bittenbender, the disciplinary hearing adjudication officer,
failed to afford him with impartial hearings on two
occasions, resulting in the loss of a total of 160 days of
good time credit from the two decisions. (Id. at 12,
19.) Plaintiff further contests the Regional and Central
Office of the BOP's failure to address his appeals of
those adjudications of his misconduct. (Id.; Doc.
No. 1-2, Declaration of Facts ¶ 1-5.) Plaintiff alleges
that because the Regional and Central Officer staff were
“playing games and avoiding adjudication of [his]
claims, ” he submitted his appeals to the Prison
Litigation Unit, and specifically to the five AUSA's
named as Defendants in the caption of the complaint, but did
not receive any response from them. (Doc. No. 1-2 at 3.)
Finally, Plaintiff complains that FCI-Allenwood employees
refused his numerous requests for his prescriptions while
housed in the Special Housing Unit (“SHU”). (Doc.
No. 1 at 10-11.)
sets forth a total of 19 causes of action against the
above-named Defendants. The matter is now before the Court
pursuant to its statutory obligation under 28 U.S.C.
§§ 1915A and (e)(2) to screen the complaint and
dismiss it if it fails to state a claim upon which relief can
STANDARD OF REVIEW
28 U.S.C. § 1915A, the Court is obligated, prior to
service of process, to screen a civil complaint in which a
prisoner is seeking redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a); James v. Pa. Dep't of Corr.,
230 F.App'x 195, 197 (3d Cir. 2007). The Court must
dismiss the complaint if it fails to state a claim upon which
relief can be granted. 28 U.S.C. § 1915A(b)(1);
Mitchell v. Dodrill, 696 F.Supp.2d 454, 471 (M.D.
Pa. 2010). The Court has a similar obligation with respect to
actions brought in forma pauperis. See 28
U.S.C. § 1915(e)(2). In performing this mandatory
screening function, a district court applies the same
standard applied to motions to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Mitchell, 696
F.Supp.2d at 471.
ruling on a motion to dismiss under Rule 12(b)(6), the Court
must accept as true all factual allegations in the complaint
and all reasonable inferences that can be drawn from them,
viewed in the light most favorable to the plaintiff. See
In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314
(3d Cir. 2010). The Court's inquiry is guided by the
standards of Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009). Under Twombly and Iqbal, pleading
requirements have shifted to a “more heightened form of
pleading.” See Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009). To prevent dismissal, all civil
complaints must set out “sufficient factual
matter” to show that the claim is facially plausible.
Id. The plausibility standard requires more than a
mere possibility that the defendant is liable for the alleged
misconduct. As the Supreme Court instructed in
Iqbal, “where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not
‘show[n]' - ‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (citing
to determine the sufficiency of a complaint under
Twombly and Iqbal, the United States Court
of Appeals for the Third Circuit has identified the following
steps a district court must take when determining the
sufficiency of a complaint under Rule 12(b)(6): (1) identify
the elements a plaintiff must plead to state a claim; (2)
identify any conclusory allegations contained in the
complaint “not entitled” to the assumption of
truth; and (3) determine whether any “well-pleaded
factual allegations” contained in the complaint
“plausibly give rise to an entitlement to
relief.” See Santiago v. Warminster Twp., 629
F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks
ruling on a Rule 12(b)(6) motion to dismiss for failure to
state a claim, “a court must consider only the
complaint, exhibits attached to the complaint, matters of
public record, as well as undisputedly authentic documents if
the complainant's claims are based upon these
documents.” Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993)). A court may also consider “any ‘matters
incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders,
[and] items appearing in the record of the case.'”
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260
(3d Cir. 2006) (quoting 5B Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 1357 (3d Ed.
conducting its screening review of a complaint, the court
must be mindful that a document filed pro se is
“to be liberally construed.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976).
pro se complaint, “however inartfully pleaded,
” must be held to “less stringent standards than
formal pleadings drafted by lawyers” and can only be
dismissed for failure to state a claim if it appears beyond
doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972).
forth above, Plaintiff has asserted 19 causes of action. The
Court will now address each ad seriatim.
Foia Claim (Count 1)
asserts a FOIA claim against three individual Defendants:
Tafleski, Qureishi and Spaulding. Plaintiff asserts that
these Defendants withheld and refused to disclose information
that Plaintiff requested. (Doc. No. 1 at 26.) While it is not
entirely clear as to what information Plaintiff is alleging
was unlawfully withheld, liberally construing the complaint
and the attached “declaration of facts” (Doc. No.
1-2), it appears that Plaintiff argues that these Defendants
did not respond to: (1) his request as to why he was placed
in SHU at FCI-Allenwood; (2) his request to preserve evidence
from the alleged incidents that took place while at
FCI-Allenwood; and (3) his BP-9 and BP-10 grievance forms
that he submitted directly to Tafleski and Spaulding. (Doc.
No. 1-2 at 1, 2, 4.)
FOIA claim fails for three reasons. First, Plaintiff cannot
maintain a FOIA action against individually named defendants.
FOIA creates disclosure obligations for federal agencies, but
does not impose individual liability on government personnel.
Kaplan v. Ebert, 648 F.App'x 177, 180 (3d Cir.
2016). Indeed, courts have consistently held that individual
governmental officials are not properly named as defendants
in FOIA lawsuits. See, e.g., Nelson v. United
States, Civ. No. 1:15-CV-1696, 2015 WL 6501243, at *4
(M.D. Pa. Oct. 27, 2015); Martinez v. Bureau of
Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006). Second,
money damages-the relief Plaintiff seeks to recover in his
complaint-are not available under FOIA. See Kaplan,
648 F.App'x at 180. Third, the complaint is of factual
averments from which an inference could be drawn that
Plaintiff submitted a proper FOIA request for
“records.” Rather, it appears that Plaintiff
premises liability on allegations that Defendants failed to
respond to his questions and provide him with a rationale or
explanation of certain prison policies and procedures, which
are not countenanced by the scope and reach of the FOIA.
Jean-Pierre v. Fed. Bureau of Prisons, 880 F.Supp.2d
95, 104 (D.D.C. 2012) (citations omitted); see also
Thomas v. Comptroller of Currency, 684 F.Supp.2d 29, 33
(D.D.C. 2010) (“To the extent that plaintiff's FOIA
requests were questions or requests for explanations of
policies or procedures, these are not proper FOIA requests
requiring . . . [a] response.”).
Defendants Tafleski, Qureishi, and Spaulding are not proper
parties, Plaintiff's FOIA claim will be dismissed against
them with prejudice. However, the Court will permit Plaintiff
leave to amend his complaint to assert a cognizable FOIA
claim against the proper institutional defendant. Plaintiff
is reminded that should he choose to re-assert a FOIA claim
and name the proper institutional defendant, he must set
forth factual allegations that support his claim that
Defendants failed to respond to his properly submitted FOIA
FTCA Claims (Counts 2-7)
in Counts 2 through 7, Plaintiff alleges violations of the
FTCA. Specifically, in Count 2, Plaintiff asserts a claim of
intentional infliction of emotional distress against
Defendants Bittenbender, Brewagoner, Hause, Lozano, Trithol,
Spaulding, Reedy, Martin, Tafleski, Slokum, Galloza, Maize,
Felton, John Does 1-4, and the United States. He alleges that
these Defendants beat, assaulted and battered him, tortured
him in the “dryroom” by cuffing and chaining him
so tight that it lacerated his flesh, and ignored his cries
for help and medical care. (Doc. No. 1 at 22.) In Count 3 he
alleges civil conspiracy against all named Defendants by
acting in a common purpose to torture, abuse, and torment
him. (Id. at 23.) In Counts 4 and 5 Plaintiff
alleges assault and battery by Defendants Felton, Martin,
Reedy, Maize, Galloza, John Does 1-4, Brewagoner, and the
United States. He alleges that these Defendants assaulted and
battered him in the corridor of the SHU, dragged him down the
stairs to a holding cell, beat him in the holding cell, sat
on his chest, and with unnecessary force, chained and
shackled him so tightly that the chain cut through his flesh.
(Id. at 24, 25.) In Count 6, Plaintiff alleges
negligence by Defendants Bittenbender, Brewagoner, Hause,
Lozano, Trithol, Spaulding, Reedy, Martin, Tafleski, Slokum,
Galloza, Maize, Felton, and the United States. Specifically,
Plaintiff alleges that despite BOP program statements setting
forth these Defendants' duties and obligations towards
Plaintiff, Defendants failed to intervene to provide him with
needed medical care and violated policies relating to
cuffing, chaining, transfer, and placement of inmates.
(Id. at 26.) At Count 7, Plaintiff asserts a
“negligence - special relationship” claim against
Defendants Bittenbender, Brewagoner, Huase, Lozano, Trithol,
Spaulding, Reedy, Martin, Tafleski, Slokum, Galloza, Maize,
Felton, and the United States. Plaintiff's allegations in
this Count are identical to those set forth in Count 6.
(Id. at 27.)
the FTCA provides jurisdiction for suits against the United
States for torts allegedly committed by federal officials,
the United States is the only proper defendant in a case
brought under the FTCA. CNA v. United States, 535
F.3d 132, 138 n.2 (3d Cir. 2008); see also Thomas v.
United States, 558 F.Supp.2d 553, 557 (M.D. Pa. 2008)
(“[T]he only proper party Defendant is the United
States, and not individual employees of the BOP.”);
Boyd v. United States, 482 F.Supp. 1126, 1128 (W.D.
Pa. 1980) (“Only the United States Government itself is
amenable to suit under [the FTCA]. Employees and specific
government agencies are not proper defendants.”).
Accordingly, the Court will dismiss Counts 2-7 against all
individually named Defendants with prejudice. Thus, the only
remaining Defendant in Counts 2-7 is the United States.
Counts 2 through 7 Having determined the properly
named Defendant in Counts 2-7, the Court addresses each Count
Intentional Infliction of Emotional Distress (Count
Court looks to Pennsylvania law in assessing whether
Plaintiff has alleged sufficient facts to support his claim
for intentional infliction of emotional distress. See
Tronoski v. Murphy, No. 95-1093, 1995 WL 225312, at *2
(E.D. Pa. Apr. 17, 1995); Frank v. Smith, No.
9-CV-596, 2009 WL 5214978, at *4 (M.D. Pa. Dec. 29, 2009).
While the Pennsylvania Supreme Court has yet to formally
recognize a cause of action for intentional infliction of
emotional distress, Taylor v. Albert Einstein Med.
Ctr., 754 A.2d 650, 652 (Pa. 2000), the Pennsylvania
appellate courts have recognized the tort. Field v.
Phila. Elec. Co., 565 A.2d 1170, 1183-84 (Pa. Super.
1989); Deitrick v. Costa, No. 6-CV-1556,
2015 WL 1606714, at *5 (M.D. Pa. Apr. 9, 2015). The Third
Circuit, predicting that the Pennsylvania Supreme Court will
ultimately recognize the tort, has allowed recovery for
intentional infliction of emotional distress. Williams v.
Guzzardi, 875 F.2d 46 (3d Cir. 1989).
Pennsylvania, to prevail on a claim of intentional infliction
of emotional distress, the plaintiff must prove that:
by extreme and outrageous conduct, intentionally or
recklessly caused the plaintiff severe emotional distress
… Liability will be found only where the conduct has
been so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community . . . . Generally, the case is one in which the
recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him
to exclaim, “Outrageous!” . . . . The extreme and
outrageous character of conduct may arise from an abuse by a
person in a position of actual or apparent authority over
another, or by one with the power to affect the other's
(Id.) (citations omitted).
this standard, “[i]t has not been enough that the
defendant has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized by
‘malice, ' or a degree of aggravation which would
entitle the plaintiff to punitive damages for another
tort.” Daughen v. Fox, 539 A.2d 858, 861 (Pa.
Super.1988) (quoting Restatement of Torts (2d) § 46
Comment (d)). Pennsylvania courts have held that “it is
unwise and unnecessary to permit recovery to be predicated on
an inference based on the defendant's
‘outrageousness' without expert medical
confirmation that the plaintiff suffered the claimed
distress.” Kazatsky v. King David Memorial Park,
Inc., 527 A.2d 988, 995 (Pa. 1987). Thus, “to
state a claim under which relief can be granted for the tort
of intentional infliction of emotional distress, the
plaintiffs must allege physical injury.” Hart v.
O'Malley, 647 A.2d 542, 554 (Pa. Super 1994).
construed, Plaintiff's complaint, and accompanying
“Declaration of Facts, ” allege, inter
alia, that the beating, assault and battery, and torture
at the hands of the Allenwood Defendants in the
“dryroom” as well as his incessant cries for
medical care and to be removed from the cell with the
white-supremacist, have caused him both physical and
psychological damage. (Doc. No. 1 at 22.) Plaintiff further
alleges in his “Declaration” that once
transferred from FCI-Allenwood to FCI-McKean, the staff
there, including Dr. Adamucci of Psychology, took at least 50
pictures of his wounds and prepared a report. (Doc. No. 1-2
at 2.) Considering these allegations, the Court is satisfied
that Plaintiff has met the initial pleading requirements to
allow this claim to proceed through screening.
Pennsylvania - Civil Conspiracy (Count 3)
Count 3 Plaintiff alleges civil conspiracy against all named
Defendants by acting in a common purpose to torture, abuse,
and torment him. (Id. at 23.) Under Pennsylvania
law, to establish a prima facie case of civil
conspiracy, a plaintiff must plead and prove: (1) a
combination of two or more persons acting with a common
purpose to do an unlawful act or to do a lawful act by
unlawful means or for an unlawful purpose; (2) an overt act
in furtherance of the conspiracy; and (3) actual legal
damages. Costa, 2015 WL 1606714, at *9 (citing
Goldstein v. Phillip Morris, Inc., 854 A.2d
585, 590 (Pa. Super. 2004). Proof of malice, defined as an
intent to injure, is required. Reading Radio, Inc. v.
Fink, 833 A.2d 199, 212 (Pa. Super. 2003). The unlawful
intent must be without justification. Thompson Coal Co.
v. Pike Coal Co., 412 A.2d 466, 472 (Pa. 1979). The
elements of civil conspiracy may be proven circumstantially,
so long as the evidence is “full, clear and
satisfactory.” Rumbaugh v. Beck, 601 A.2d 319,
327 (Pa. Super. 1991). A plaintiff cannot rely on subjective
suspicions and unsupported speculation. Young v.
Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991).
Plaintiff's vague and conclusory allegations of
conspiracy fail to satisfy the specific pleading requirements
set forth above. Indeed, Plaintiff does no more than refer
the Court to 62 paragraphs included, by reference, in Count
3, and concludes that these “many overt-acts
supra” committed by the Defendants were
“in pursuit of their common unlawful purpose.”
(Doc. No. 1 at 23). Even assuming the Court could glean such
an inference from the complaint, these allegations provide no
substitute for the requirement that Plaintiff plead the
circumstances of the conspiracy with specificity in order to
place the Defendants on notice of the precise misconduct with
which they are charged, such as the period of the conspiracy,
the object of the conspiracy, and certain actions the alleged
conspirators have taken to achieve that purpose. See
Young, 926 F.2d at 1405 n.16. Accordingly, this claim
will be dismissed without prejudice and Plaintiff will be
granted leave to amend this claim in accordance with the
Assault and Battery (Counts 4 and 5)
Counts 4 and 5, Plaintiff claims that Defendants assaulted
and battered him in the corridor of the SHU, dragged him down
the stairs to a holding cell, beat him in the holding cell,
sat on his chest, and with unnecessary force, chained and
shackled him so tightly that the chain cut through his flesh.
(Id. at 24, 25.)
Pennsylvania, “an assault occurs when one acts with the
intent to place another in reasonable and immediate
apprehension of harmful or offensive contact, and that act
does cause such apprehension. Zimmerman v.
Schaeffer, 654 F.Supp.2d 226, 255 (M.D. Pa. 2009).
Additionally, the actor must be in a position to inflict this
contact and take some affirmative action to do so.
Picariello v. Fenton, 491 F.Supp. 1026, 1037 (M.D.
Pa. 1980). Battery, on the other hand, requires that the
actor have the intent to cause harmful or offensive contact
with the person, and that such contact actually occur.
Benjamin v. Fassnacht, 39 F.Supp.3d 635, 648 (E.D.
Pa. 2014). “While corrections officers have the
authority to use necessary force under appropriate
circumstances, the reasonableness of this force in relation
to their employment duties determines whether particular
conduct is considered an assault and battery.”
Tejada v. Dale, No. 14-CV-5604, 2015 WL 5729273, at
*6 (E.D. Pa. 2015) (citing Picariello, 491 F.Supp.
at 1038 (determining that “necessary touchings by
correctional officers of inmates in the performance of their
duties are not batteries, but privileged contacts.”)).
the complaint's allegations as true, the Court is
satisfied that Plaintiff has sufficiently pled the requisite
elements comprising claims of assault and battery.
Accordingly, Counts 4 and 5 survive the screening
requirements of the PLRA.
Negligence and Negligence Special Relationship (Counts 6 and
Pennsylvania, to prevail in a negligence action, a plaintiff
must demonstrate the following elements: (1) the defendant
owed a duty to the plaintiff; (2) the defendant breached that
duty; (3) a causal relationship between the breach and the
resulting injury suffered by the plaintiff; and (4) actual
loss suffered by the plaintiff. Merlini ex rel. Merlini
v. Gallitzin Water Auth., 980 A.2d 502, 506 (Pa. 2009).
In Pennsylvania, whether a defendant owes a duty of care to a
plaintiff is a question of law for the court to decide.
Kleinknecht v. Gettysburg College, 989 F.2d 1360,
1366 (3d Cir. 1993). A ...