United States District Court, M.D. Pennsylvania
Christopher C. Conner, United States District Court Chief
March 12 2015 plaintiff Bruce Anthony Dillard
(“Dillard”) an inmate formerly housed at the
Federal Correctional Institution Schuylkill Pennsylvania
(“FCI-Schuylkill”) commenced this action in the
United States District Court for the Eastern District of
Pennsylvania (Doc. 1) The action was transferred to this
court on April 15 2015 (Doc. 6) The matter is proceeding via
an amended complaint (Doc. 48) The amended complaint raises
claims under Bivens 28 U.S.C. § 1331 and the Federal Tort
Claims Act (“FTCA”) (Id.) Named as
defendants are the United States of America Bureau of Prisons
(“BOP”) Northeast Regional Director Joseph L
Norwood Counselor G Talamantes Unit Manager George Nye III
former Lieutenant D Lentini Captain Hepner Case Manager Brad
Haupt, former Associate Warden C. Entzel, former Warden Jeff
Krueger, Warden Russell A. Purdue, and Lieutenant R. Raup.
ripe for disposition is defendants' amended motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b) or,
in the alternative, for summary judgment pursuant to Federal
Rule of Civil Procedure 56. (Doc. 56). For the reasons set
forth below, the court will grant the motion for summary
party moves to dismiss, but where “matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56.” Fed.R.Civ.P. 12(d). Typically, when a court
converts a motion to dismiss into a motion for summary
judgment under Rule 56, notice must be given to all parties
of the court's intent to do so. Id.; Garcia
v. Newtown Twp., 2010 WL 785808, at *3 (E.D. Pa. 2010).
However, if a motion to dismiss has been filed with an
alternative request for summary judgment, the Third Circuit
Court of Appeals has found that the alternative filing is
sufficient to “place the parties on notice that summary
judgment might be entered.” Latham v. United
States, 306 F. App'x 716, 718 (3d Cir. 2009) (citing
Hilfirty v. Shipman, 91 F.3d 573, 578-79 (3d Cir.
1996)). Accordingly, the court will treat defendants'
filing as a motion for summary judgment.
summary adjudication the court may dispose of those claims
that do not present a “genuine issue as to any material
fact” and for which a jury trial would be an empty and
unnecessary formality. See Fed.R.Civ.P. 56(a), (c). The
burden of proof is upon the nonmoving party to come forth
with “affirmative evidence, beyond the allegations of
the pleadings, ” in support of its right to relief.
Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315
(M.D. Pa. 2004); Fed.R.Civ.P. 56(e); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This
evidence must be adequate, as a matter of law, to sustain a
judgment in favor of the nonmoving party on the claims. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587-89 (1986); see also
Fed.R.Civ.P. 56(c), (e). Only if this threshold is met may
the cause of action proceed. Pappas, 331 F.Supp.2d
Allegations of the Amended Complaint
allegations of the amended complaint stem from Dillard's
incarceration at FCI-Schuylkill. (Doc. 48). Dillard alleges
that his due process rights were violated when he was placed
in the Special Housing Unit (“SHU”). He raises
claims of cruel and unusual punishment, inadequate housing
conditions, retaliation, and inadequate treatment for mental
health issues. (Id.)
to Dillard, defendant Talamantes placed him in a ten-man cell
on two (2) occasions-July 13, 2012 and August 29, 2012-and he
was housed in a ten-man cell for a total of approximately ten
(10) months. (Doc. 48 ¶¶ 1-2, 4). Dillard asserts
that the cell was overcrowded, unsanitary, had inadequate
cleaning supplies, and was not conducive to a good
night's sleep. (Id. at ¶¶ 1-2, 4-5).
He also asserts that in September 2012, Talamantes moved
Dillard's legal property from a storage area in
retaliation for filing a grievance. (Id. at ¶
2013, Talamantes purportedly denied Dillard's request for
a new cellmate or cell change. (Id. at ¶ 6). He
further alleges that Talamantes placed erroneous information
in “transfer forms” that the BOP utilized to
transfer Dillard from FCI-Schuylkill to FCI-Gilmer, in order
to defame and humiliate him, label him a snitch, and place
his life in danger. (Id. at ¶ 11).
alleges that defendant Nye also told inmates that Dillard
wanted his cellmate moved, again causing rumors that Dillard
was a snitch. (Id. at ¶ 7). Dillard further
alleges that, on February 7, 2014, Nye ordered him to dismiss
his grievance regarding a cell change and reassigned him to
an eight-man cell. (Id.) Thereafter, Nye allegedly
removed Dillard's personal property from the eight-man
cell, stored it inside his office, and ignored Dillard's
request for return of his property. (Id. at ¶
7). According to Dillard, defendant Krueger ultimately
responded to his grievance regarding placement in the ten-man
cell, explaining that Dillard was placed in the cell for
safety reasons. (Id. at ¶ 13).
alleges that defendant Lentini verbally threatened him to
dismiss his grievance about the room change “or he
would discard it personally.” (Id. at ¶
8). Dillard refused to drop his grievance. (Id.) On
August 20, 2014, defendant Lentini allegedly ordered that
Dillard be placed in the SHU. (Id.) Dillard suggests
that his due process rights were violated because he was held
in the SHU for one hundred twenty (120) days. (Id.)
Defendant Hepner allegedly placed Dillard in the SHU as a
safety precaution. (Id. at ¶¶ 8-9).
Dillard claims that his safety was not at risk and that
Hepner lied about the reasons for his placement in the SHU.
(Id. at ¶ 9). Dillard further contends that
Hepner denied him phone privileges and access to the courts
in November 2014, in retaliation for filing grievances.
(Id. at ¶ 10).
avers that he spoke to defendant Entzel about a cell change,
but Entzel failed to intervene in his request. (Id.
at ¶ 12). Dillard further claims that defendant Entzel
failed to respond to his concerns about his placement in the
SHU, as well as his complaints regarding denial of writing
paper and pencils. (Id.)
August 7, 2014, defendant Haupt allegedly threatened to issue
a false disciplinary write-up against Dillard in the presence
of other inmates. (Id. at ¶ 11). Dillard
alleges that Haupt failed to respond to his request for a
copy of his trust fund account, denying him access to the
courts. (Id.) Dillard also alleges that Haupt
falsified his custody scorings sometime in 2013.
(Id.) He asserts that Haupt was fueled by
retaliatory motives and intended to defame and humiliate him,
label him a snitch, and place his life in danger.
November 2014, Dillard requested documents from defendant
Raup concerning his placement in the SHU. (Id. at
¶ 10). Dillard avers that Raup failed to respond to the
October 20, 2014 and November 16, 2014, Dillard submitted two
(2) requests for administrative remedies to the regional
office. (Id. at ¶ 15). On December 10, 2014,
Dillard purportedly handed a request to defendant Purdue for
placement back into general population. (Id. at
¶ 14). Dillard claims that Purdue failed to respond to
his request. (Id.) On December 22, 2014, defendant
Norwood rejected Dillard's October and November requests
for administrative remedies because they were not sensitive
issues. (Id. at ¶ 15).
result of defendants' alleged actions, Dillard asserts
that he suffered mental, emotional, and physical harm,
including sleepless days and nights, “fatigue of mind
and body”, headaches, and minor cold symptoms.
(Id. at 3, 5, 8, 12-13). For relief, Dillard seeks
monetary damages. (Id. at 16-17).
Statement of Material Facts
ordinary course of business, computerized indices are kept of
requests for administrative review filed by inmates. (Doc.
63, Statement of Material Facts (“SMF”), ¶
12). A search of BOP records was conducted to determine
whether Dillard exhausted the administrative process as to
his Bivens claims. (Id. at ¶ 13). This review
revealed that Dillard filed fifty-nine (59) administrative
remedies during his incarceration with the BOP. (Id.
at ¶ 13). Of the fifty-nine (59) administrative requests
for relief, twenty-four (24) are related to FCI-Schuylkill.
(Id. at ¶ 14). Of those twenty-four (24)
filings, sixteen (16) pertain to issues raised in the amended
complaint, and only three (3) of the remedies were fully
exhausted: administrative remedies 557280, 703008, and
767827. (Id. at ¶ 15-16).
2009, Dillard exhausted administrative remedy 557280 on the
issue of “unprofessional conduct.” (Id.
at ¶¶ 17-24). The details of the administrative
remedy are unavailable, as administrative remedies are only
maintained for three (3) years. (Id. at ¶ 17,
2012, Dillard exhausted administrative remedy 703008
regarding claims of retaliation, cell assignments, and legal
materials. (Id. at ¶¶ 25-33).
Specifically, Dillard complained that defendant Talamantes
removed him from a two-man cell and placed him in a ten-man
cell, and then removed his legal property from a storage area
in September 2012 in retaliation for filing a grievance.
(Id. at ¶¶ 25, 29).
2014, Dillard exhausted administrative remedy 767827 wherein
he complained that, on or about January 16, 2014, when he
submitted a request for a new cellmate or cell change,
defendants Talamantes and Nye (in retaliation for Dillard
filing remedy 703008), told other prisoners that Dillard
wanted his cellmate moved, resulting in rumors that Dillard
was a snitch. (Id. at ¶¶ 34-39). Dillard
also alleged that defendant Nye refused to process one of his
filings for this remedy despite his ultimate exhaustion, and
that Nye and Talamantes retaliated against him by moving him
to a common area cell. (Id.)
failed to exhaust his administrative remedies concerning any
other Bivens issues in his amended complaint. (Id.
at ¶¶ 40-52).
purposes of the FTCA claim, Dillard was required to file an
administrative tort claim with the Regional Office and
receive a final decision by the agency before filing his
action in federal court. (Id. at ¶¶
53-55). BOP records reveal that Dillard filed four (4) tort
claim remedies, none of which concern the issues of the
amended complaint. (Id. at ¶¶ 56-58).
Nye was Dillard's Unit Manager and his duty was to
supervise unit staff (Id. at ¶¶ 59-61)
Defendant Nye denies disposing of Dillard's legal
materials at any time speaking to other inmates about Dillard
and denying any of Dillard's constitutional rights
(Id. at ¶¶ 63-64) Defendant Nye acted
within the scope of his employment and in accordance with
prison policies and procedures (Id. at ¶ 65)
Talamantes is a Unit Counselor at FCI-Schuylkill
(Id. at ¶ 66) His duties include authorizing
cell changes at times with guidance from other unit staff
(Id. at ¶ 67) On July 9 2012 upon Dillard's
placement in the SHU Talamantes maintained Dillard's
legal property in his office due to the volume of legal
materials (Id. at ¶ 69) When Dillard was
released from the SHU on July 19 2012 all of his legal
property was ...