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Wiggins v. Bledsoe

United States District Court, M.D. Pennsylvania

November 30, 2017

RONNIE G. WIGGINS, Plaintiff
v.
BRIAN A. BLEDSOE, et al., Defendants

          MEMORANDUM

          JAMES M. MUNLEY, JUDGE UNITED STATES DISTRICT COURT.

         Background

         Ronnie Wiggins filed this combined Bivens[1]/Federal Tort Claims Act (FTCA) action regarding his prior confinement at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg).[2] The Plaintiff is represented by counsel. An Amended Complaint (Doc. 15) was subsequently submitted.

         A 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. 52.

         By 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.

         Remaining 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.

         Plaintiff 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 been unwarranted.

         In 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).

         The 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.

         During 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.

         On July 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.

         The 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.

         The 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.

         Wiggins 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.

         It is 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 damages.

         Discussion

         Motion to Dismiss

         Remaining 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).

         This 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 entered.”)

         Summary Judgment

         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)).

         Warden Bledsoe

         Plaintiff 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.

         In 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.

         A 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).

         Federal 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 particularity.

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.

         Prisoners 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.”)

         While 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).

         However, 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).

         According 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.[3] 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 ...


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