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Porter v. United States

United States District Court, M.D. Pennsylvania

March 27, 2018

DAREN PORTER, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant

          MEMORANDUM

          RICHARD P. CONABOY, UNITED STATES DISTRICT JUDGE.

         Background

         Daren 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 America.

         Plaintiff 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 (USP-Lewisburg).

         By 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 outside hospitals.

         Plaintiff contends that Officer White removed Porter from his SMU cell on October 2, 2012 and escorted him to the shower room.[1] 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.[2]

         Following 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 provided.

         The 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.

         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 previously dismissed.

         In sum, 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 restraints.

         Presently pending is the Defendant's second motion for summary judgment. See Doc. 94. The opposed motion is ripe for consideration.

         Discussion

         Defendant 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, p. 17.

         Standard of Review

         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)).

         FTCA

         As 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. 1988).[3]

         A 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).

         Liability 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).

         The 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

         A 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).

         Assault/Battery

         Defendant 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.[4] 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 ...


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