United States District Court, M.D. Pennsylvania
RONNIE G. WIGGINS, Plaintiff
BRIAN A. BLEDSOE, et al., Defendants
M. MUNLEY, JUDGE UNITED STATES DISTRICT
Wiggins filed this combined Bivens/Federal Tort
Claims Act (FTCA) action regarding his prior confinement at
the United States Penitentiary, Lewisburg, Pennsylvania
(USP-Lewisburg). The Plaintiff is represented by counsel.
An Amended Complaint (Doc. 15) was subsequently submitted.
stipulation executed by counsel for the parties which agreed
that the claims against Defendants Campbell, Drees,
Dunkelberger, Edinger, Fosnot, Hepner, Loss, Maiorana,
Murray, Perrin, Rear, Yohe and Yost should be dismissed was
approved by this Court on January 23, 2015. See Doc.
Order dated August 31, 2015, Plaintiff's motion to file a
second amended complaint was granted and the proposed second
amended complaint (Doc. 91-1) was accepted. See Doc.
95. Remaining Defendants responded by filing a motion to
dismiss and for summary judgment. See Doc. 98.
Defendants, with respect to the Bivens portion of
the second amended complaint, are the following USP-Lewisburg
officials: Warden Brian Bledsoe; Unit Manager John Adami;
Lieutenants S. Heath and Jim Fleming; as well as Correctional
Officers Tim Crawford and Michael Hornberger. The United
States of America is the Defendant as to the FTCA claim.
has been in Bureau of Prison (BOP) custody since 1990.
Wiggins is a former affiliate of the Dirty White Boys (DWB)
gang and held a leadership position within that organization.
While confined. at the Unites States Penitentiary,
Victorville, California (USP-Victorville) in 2007, Wiggins
and another inmate stabbed two members of the DWBs. As a
result of that incident, Plaintiff was targeted for
retribution by the DWBs . Specifically, DWB members had
standing orders to attack and kill Wiggins in retaliation for
his sole in the assault which was apparently felt to have
response to the threats against the Plaintiff, he was
designated for transfer by the BOP to another federal
correctional facility. Wiggins arrived at USP-Lewisburg on
May 19, 2008 and was placed in the prison's Special
Management Unit (SMU).
at USP-Lewisburg was created in 2009 to house disruptive and
violent prisoners. SMU prisoners are generally kept in their
cells but they receive one (1) hour of daily recreation in a
recreation cage. Due to their backgrounds, SMU prisoners
require greater supervision. Upon his arrival at
USP-Lewisburg, Wiggins claims that he informed prison
officials of his need to be separated from any prisoners who
were affiliated with the DWB gang. As a result of his need
for protection, Wiggins was afforded single cell status
whenever possible. See Doc. 91-1, ¶ 23.
the first fourteen (14) months of his USP-Lewisburg
confinement, Plaintiff asserts that he was housed on
USP-Lewisburg's G Block without incident. Specifically,
Wiggins was not assaulted by any other prisoners and was kept
separated from DWB members and other white gang affiliates.
On May 18, 2009, Wiggins was transferred to B Block where he
remained until July 15, 2009 again without incident.
15, 2009, Plaintiff was sent to the third floor of Z Block.
It is asserted that this transfer was initiated without the
usual internal documentation purportedly per a determination
by Unit Manager Adami. When advised of the planned transfer,
Plaintiff states that he informed Adami and other staff that
such a transfer would pose a threat to his safety as there
were inmates on Z block's third floor who were DWB
members including one who had recently been transferred from
USP-Victorville. Adami purportedly responded that Plaintiff
would only be on the upper floor for one night and would then
be moved to Z Block, basement floor the following day.
next day, July 16, 2009, Plaintiff was removed from his cell
without explanation. According to Plaintiff, he felt that he
was being transferred to the basement floor as previously
discussed. However, Wiggins was not taken to Z Block basement
cell as previously promised but rather was placed in a
USP-Lewisburg Z Block six person recreation cage which was
already occupied by four other inmates who were unknown to
the Plaintiff. Wiggins was purportedly not given a choice as
to whether he wanted to go to recreation, or informed in
advance who would be in his recreation cage. Other recreation
cages were empty at the time.
four prisoners in the recreation cage were known members of
the DWB gang and Plaintiff was immediately attacked and
stabbed twenty-two (22) times with a metal knife. The weapon
was handed to one of Wiggins' assailants by a prisoner in
an adjoining recreation cage. As a result of the assault,
Plaintiff suffered serious injuries which required surgery
and a one week hospitalization.
contends that the individual Remaining Defendants failed to
protect his safety because they were aware of the
longstanding separation requirement between he and DWB
members yet still placed him in a recreation cage with known
members of that gang. Plaintiff also points outs that in the
months preceding his attack, there had been multiple assaults
in the Z Block recreation cages. Moreover, USP-Lewisburg Post
Orders in effect at that time required officers to pat search
and use a hand held metal detector to search each SMU
prisoner for weapons when they leave their cells. Other Post
Orders also required close monitoring of inmates in the Z
Block recreation cages and that area be searched for weapons.
Plaintiff maintains that compliance with those orders should
have prevented his attackers from being armed with a knife.
also asserted that those Remaining Defendants who were
present at the time of the attack failed to timely intervene.
Furthermore, Defendant Hornberger allegedly failed to sweep
the recreation are for any contraband on the day of the
attack. Furthermore, due to an alleged lack of adequate
supervision a seven inch metal knife was passed from inmates
in an adjoining cell to the DWB prisoners which was then used
to stab Wiggins. Plaintiff seeks compensatory and punitive
Defendants' 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).
Court will not exclude the evidentiary materials accompanying
the Remaining Defendants' motion. Thus, their 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
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.
contends that Warden Bledsoe was involved in the decision to
move him to Z Block and failed to institute policies to make
recreation safer for SMU prisoners despite his knowledge that
violence was increasing in the SMU including the recreation
cages. See Doc. 91-1, p. 14. Remaining Defendants
argue that there are no facts alleged in the second amended
complaint which could support a claim of supervisor liability
against Warden Bledsoe. See Doc. 100, p. 12.
support of their argument, they have submitted a declaration
under penalty of perjury by now retired Warden Bledsoe.
See Doc. 101-1, Exhibit 1. Bledsoe states that
beginning in 2009 USP-Lewisburg began gradually converting
from an open population penitentiary to a predominately SMU
wide facility. As part of that process, multiple new safety
procedures were implemented including: the hiring of,
additional correctional staff, installation of additional
recreation cages and security cameras, inmates initially
entering the SMU were now x rayed for contraband, and all
inmates coming out of their cells were pat searched and
searched with a hand held metal detector. Bledsoe does not
specifically address the claim that he was involved in any
cell change decisions for the Plaintiff. The former Warden
does state that his role at USP-Lewisburg was to provide
administrative direction over supervisory staff.
plaintiff, in order to state an actionable civil rights
claim, must plead two essential elements: (1) that the
conduct complained of was committed by a person acting under
color of law, and (2) that said conduct deprived the
plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States. Groman v.
Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995);
Shaw by Strain v. Strackhouse, 920 F.2d 1135,
1141-42 (3d Cir. 1990).
civil rights claims brought under § 1983 cannot be
premised on a theory of respondeat superior.
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988). Rather, each named defendant must be shown, via the
complaint's allegations, to have been personally involved
in the events or occurrences which underlie a claim. See
Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v.
Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir.
1976). As explained in Rode:
A defendant in a civil rights action must have personal
involvement in the alleged wrongs. . . . [P]ersonal
involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.
Allegations of participation or actual knowledge and
acquiescence, however, must be made with appropriate
Rode, 845 F.2d at 1207. Hence, a claim asserted
solely on the basis of a defendant's supervisory position
within a prison is insufficient.
also have no constitutionally protected right to a grievance
procedure. See Jones v. North Carolina Prisoners'
Labor Union, Inc., 433 U.S. 119, 137-38 (1977)(Burger,
C.J., concurring) (“I do not suggest that the
[grievance] procedures are constitutionally
mandated.”); Speight v. Sims, No. 08-2038,
2008 WL 2600723 at *1 (3d. Cir. Jun 30, 2008)(citing
Massey v. Helman, 259 F.3d 641, 647 (7th Cir.
2001)(“[T]he existence of a prison grievance procedure
confers no liberty interest on a prisoner.”)
prisoners do have a constitutional right to seek redress of
their grievances from the government, that right is the right
of access to the courts which is not compromised by the
failure of prison officials to address an inmate's
grievance. See Flick v. Alba, 932 F.2d 728, 729 (8th
Cir. 1991) (federal grievance regulations providing for
administrative remedy procedure do not create liberty
interest in access to that procedure). Pursuant to those
decisions, any attempt by Plaintiff to establish liability
against Warden Bledsoe based upon that Defendant's review
of his administrative grievances or complaints does not
support a constitutional claim. See also Alexander v.
Gennarini, 144 Fed.Appx. 924, 925 (3d Cir.
2005)(involvement in post-incident grievance process not a
basis for § 1983 liability); Pryor-El v. Kelly,
892 F.Supp. 261, 275 (D. D.C. 1995) (because prison grievance
procedure does not confer any substantive constitutional
rights upon prison inmates, the prison officials' failure
to comply with grievance procedure is not actionable).
a claim that a supervisor knew that a policy or procedure in
place at the relevant time created an unreasonable risk of a
constitutional violation and the supervisor was deliberately
indifferent to that risk is sufficient to set forth a viable
constitutional claim. See Beers-Capitol v. Wetzel,
256 F.3d 120, 133-34 (3d Cir. 2001).
to undisputed evidence, correctional staff including the
prison's Cell Assignment Committee were required to
consider an inmate's known separation needs when making
cell and recreation cage assignments. Thus, there were clearly
policies in place to ensure that recreation cell assignments
took into consideration an inmate's separation needs.
Moreover, there are no credible facts presented by the
Plaintiff that the Warden had actual personal ...