United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY, UNITED STATES DISTRICT JUDGE.
Porter (Plaintiff), an inmate presently confined at the
United States Penitentiary, Florence, Colorado initiated this
pro se action pursuant to the Federal Tort Claims
Act (FTCA). Named as Defendant is the United States of
is serving a life sentence for first degree murder which was
imposed by a Michigan state court. Porter was transferred
into the custody of the Federal Bureau of Prisons (BOP) as
“a contract boarder” in 1999. Doc. 1, p. 1. On
May 18, 2010, the BOP designated Plaintiff for placement in a
Special Management Unit (SMU) because of his unfavorable
disciplinary history. The Plaintiff's pending action
asserts claims pertaining to his prior confinement in the SMU
at the United States Penitentiary, Lewisburg, Pennsylvania
Memorandum and Order dated March 29, 2016, Defendant's
motion for summary judgment was partially granted.
See Doc. 36. Specifically, Plaintiff's claims
of: (1) negligent designation of Porter into the SMU program
by the BOP; (2) verbal harassment by Correctional Officer
White; and (3) improper assignment of Plaintiff with a cell
mate while his arm was in a sling were dismissed without
prejudice for non-exhaustion of administrative remedies.
Summary judgment was also granted with respect to the FTCA
claims against Doctors Ball and Edinger as well as those
pertaining to non-BOP employees who treated the inmate at
contends that Officer White removed Porter from his SMU cell
on October 2, 2012 and escorted him to the shower
room. While Porter was handcuffed “behind
his back”, White allegedly “physically and
forcefully slammed” him to the floor. Doc. 1, ¶
16. Plaintiff suffered a broken right collarbone, sprained
ankle, and a few minor cuts as a result of this alleged
intentional assault and battery.
the arrival of other correctional staff, Plaintiff was taken
to the inside shower area. EMT Potter performed an initial
medical assessment of Porter's injuries. Despite making
repeated complaints of pain and shoulder injury to EMT Potter
and other correctional staff members, Porter was nonetheless
placed in ambulatory restraints “all night.”
Id. at ¶ 21. Although Plaintiff continued to
complain of shoulder pain during checks which were
periodically conducted throughout the one night duration of
his placement in ambulatory restraints, no medical care was
next day Plaintiff was removed from restraints and taken for
an x-ray. It is asserted that Doctor Edinger, a prison
physician, reviewed the x-ray which revealed that the inmate
had broken his collarbone in multiple places. The Plaintiff
was transferred to an outside hospital for further treatment.
Doctor Edinger, who felt that surgery was required,
subsequently referred Porter for evaluation by an outside
orthopedic specialist, Doctor Ball.
conducted an evaluation on October 10, 2012 and performed
surgery on October 19, 2012 which included the placement of a
rod and screws. As previously noted, the FTCA claims against
Doctors Ball and Edinger and outside hospital staff were
Plaintiff has two surviving FTCA claims: (1) he was subjected
to an assault and battery by White on October 2, 2012, and
(2) EMT Potter and other prison staff were negligent for not
providing Plaintiff with immediate treatment for his broken
shoulder and allowing him to be held overnight in ambulatory
pending is the Defendant's second motion for summary
judgment. See Doc. 94. The opposed motion is ripe
claims entitlement to entry of summary judgment on the
grounds that: (1) video recordings of the incident show that
the force used by Officer White was reasonable and did not
constitute assault and battery; (2) the placement of Porter
in ambulatory restraints following medical approval was
reasonable and consistent with BOP; policy; (3) the summary
judgment records demonstrates that Porter cannot establish a
prima facie medical negligence claim. See Doc. 98,
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.
previously discussed by this Court's March 29, 2016
Memorandum and Order, the FTCA provides a remedy in damages
for tortious conduct by employees of the United States.
See Simon v. United States, 341 F.3d 193, 200 (3d
Cir. 2003). The only proper Defendant for purposes of an FTCA
claim is the United States of America. See 28 U.S.C.
§ 2679(d). Generally, an FTCA claim 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.
federal district court in considering a FTCA action must
apply the law of the state in which the alleged tortious
conduct occurred, in this case, Pennsylvania. 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). The applicable law with respect to the burden and
quantum of proof under the FTCA remains that of the state in
which the alleged tortious conduct occurred. Hossic v.
United States, 682 F.Supp. 23, 25 (M.D. Pa. 1987).
under the FTCA only exists for conduct by government
employees while acting within their scope of employment.
Matsko v. United States, 372 F.3d 556, 559 (3d Cir.
2004). When determining if a defendant was acting within the
scope of his employment at the time of the underlying
incident, courts must look to the law of the state where the
incident occurred. Doughty v. United States Postal
Service, 359 F.Supp.2d 361, 365 (D.N.J. 2005).
FTCA also provides a remedy in damages for the simple
negligence of employees of the United States to protect
federal inmates. United States v. Muniz, 374 U.S.
150, 150 (1963). In presenting a FTCA claim, a plaintiff 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). In cases such as this which involve
federal prisoners, it has been recognized that the
government's duty of care is one of ordinary diligence.
See 18 U.S.C. § 4042
plaintiff is required under Pennsylvania law, to show that
the defendant's negligence was the proximate cause of his
injury by a preponderance of the evidence. Baum v. United
States, 541 F.Supp. 1349, 1351 (M.D. Pa. 1982).
Pennsylvania law defines proximate cause as causation which
was a substantial factor in bringing about the injury.
Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978).
contends that while Correctional Officer White was escorting
the Plaintiff back to his cell following a medical evaluation
on October 2, 2012, the inmate made repeated verbal
threats. In response, White gave Porter verbal
directives to calm down and took a tighter hold on the
prisoner to control his movement. See Doc. 98, p. 9.
After White gave Plaintiff an additional verbal warning in
response to another ...