Millbrook v. United States

          MEMORANDUM

          William J. Nealon United States District Judge

         I. BACKGROUND

         On April 29, 2015, Plaintiff, Kim Millbrook, an inmate formerly incarcerated in the United States Penitentiary, Lewisburg, Pennsylvania (“USP-Lewisburg”)^[1], instituted the above-captioned action by filing a pro se complaint pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (“FTCA”), against Defendant, the United States of America. (Doc. 1). Plaintiff alleges that on March 28, 2013, Lieutenant Johnson and Correctional Officer Stevens approached Plaintiff's cell and informed Plaintiff that he would be receiving a new cellmate. Id. Plaintiff allegedly refused his new cellmate because of “a contract hit out on [his] life by known gang affiliated members and non-members due to [Plaintiff] being labeled a jailhouse snitch and a homosexual.” Id. Plaintiff claims that he informed Lieutenant Johnson that “the gangster disciples, latin kings, District of Colombia (D.C.) members, CMP's and bloods and anyone [Plaintiff has] been forced to cell with would and has attacked [him] and trying to hurt or kill [Plaintiff] due to a contract hit out on [him].” (Doc. 1 at 6). Lieutenant Johnson allegedly informed Plaintiff that he “did not care, ” and that Plaintiff “was still getting a cellmate or [he] would be extracted from the cell and placed into” ambulatory restraints^[2] until he accepted a cellmate. Id. Plaintiff states that Lieutenant Johnson and Correction Officer Stevens then left the area, but Lieutenant Johnson returned later with an unknown Lieutenant and the “use of force team . . . .” Id. Plaintiff claims he was then told to “cuff up, [and] that [he] was going into ambulatory restraints” because he refused his new cellmate. (Id.). Plaintiff alleges that he complied, but claims he was “hand cuffed excessively tight around [his] wrist area . . . .” Id.

         According to Plaintiff, he was then:

taken by use of force team and unknown lieutenant and Lt. Johnson along with medical healthcare employee EMT Barth to a room on the front of F-Block 3^rd floor where the use of force team began to strip [him] of [his] clothes and applied the belly chains, hand and leg restraints extremely tight to the point where [Plaintiff] could not breath and where [his] hands, legs and feet lost blood circulation in which [he] complained to EMT Barth, Lt. Johnson and use of force team that [he] was having trouble breathing.

Id. EMT Barth and the Use of Force Team then allegedly told Plaintiff that “you will learn to do as you are told and maybe this will teach you to do as you are told . . . .” (Doc. 1 at 7).

         Plaintiff alleges that he was taken by the Use of Force Team, Lieutenant Johnson, an unknown Lieutenant, and EMT Barth to “G-Block Cell 101.” Id. He claims that he was placed in that cell, which had its window closed and a room temperature of at least a 120 degrees. Id. Plaintiff states that he “immediately began to sweat and gasp for air from the poor ventilation and passed out . . . .” Id.

         Plaintiff claims that:

[a]fter being inside the cell 101 G-Block for awhile [he] received a visit from Lt. Johnson and Lt. Knapp . . . [which is when Plaintiff] informed them that [he] was in severe pain from the restraints being to[o] tight and [he] was having trouble breathing due to the belly chains being to[o] tight around [his] waist and the poor ventilation inside the cell, also the metal pipe that gives off heat from the months of October [through] April had the temperature inside the cell [at] 120 degrees . . . .

Id. Plaintiff also alleges that he told “them [he] suffers from high blood pressure and had passed out already inside the cell and needed to be taken out of the restraints and the window inside the cell opened so as to let some air inside the cell.” Id. Additionally, Plaintiff claims he “told them that [he] was being falsely accused and that they were violating BOP policy, procedure and protocol and falsifying government documents by subjecting [him] to tortuous and abusive behavior and needed to remove [him] immediately out of the cell and the restraints.” Id. Plaintiff alleges that “Lt. Knapp and Lt. Johnson told [him] that until [he] did what they told [him] to do which is to except (sic) a violent cellmate [he] would stay in restraints inside cell 101 G-Block . . . .” Id.

         Plaintiff claims that he then “received another visit from A.W. Wilson, ” at which time he claims to have “informed [A.W. Wilson] that [Plaintiff's] life, health and safety are and is in ‘imminent danger' at all times at Lewisburg SMU program due to [Plaintiff] being labeled a jailhouse ‘snitch' and a homosexual.” Id. He also alleges that he informed A.W. Wilson of the “contract hit out on [Plaintiff's] life by known gang affiliated inmates . . . and also non-members.” Id. Plaintiff states that he told A.W. Wilson that he “was brought up on false allegations by Lt. Johnson and use of force team and placed in ambulatory restraints unjustly, that due to the restraints being applied to[o] tight Plaintiff was having trouble breathing, also the restraints were cutting off all blood circulation in [his] arms, hands, legs and feet . . . .” Id. Plaintiff claims he also informed A.W. Wilson that he was “in severe pain and that the room was to[o] ‘hot, ' and also [his] feet, fingers, hands, and wrists were swollen and turned blue.” Id. Plaintiff alleges that he also told A.W. Wilson that:

Lt. Johnson and C.O. Stevens [were] trying to force a violent inmate in the cell with [Plaintiff] on F-Block and [he] refused the inmate to be celled with [him] out of fear for [his] safety due to [him] being attacked and physically and sexually assaulted by violent inmates and staff officials while at Lewisburg SMU program and that [he has] requested protective custody and to be transferred to a safer prison facility . . . .

(Doc. 1, at 9-10).

         According to Plaintiff, A.W. Wilson stated “that he would not help [Plaintiff] because [he] told [A.W. Wilson] to have [Plaintiff] removed from the ambulatory restraints and from the cell that was 120 degrees . . . .” Id. Plaintiff alleges that A.W. Wilson then stated that Plaintiff “needed to remember that [he] was in Lewisburg and we do what we want to around here, that he does not believe his staff officials would make up fake incident reports against [Plaintiff] and even if it was true, who do you think I'm going to believe.” Id. According to Plaintiff, A.W. Wilson then “said that he would believe the staff before he would believe [Plaintiff] anyday.” Id. He claims that A.W. Wilson also stated that he knew who Plaintiff “was and for [him] to stop filing lawsuits and admin. remedies on staff and inmates here at Lewisburg, and from now on A.W. Wilson was going to be keeping a close eye on” Plaintiff. Id. at 10-11. Plaintiff claims that this interaction was witnessed by “an inmate ‘Black' whom was forced into the cell with [Plaintiff] and told by Lt. Knapp and A.W. Wilson that Plaintiff was ‘a rat' and to beat [Plaintiff] up.” Id.

         Plaintiff also claims that on the evening of March 28, 2013, cell 101 on G-Block was “infested with bugs like roaches, and rodents like rats and mice . . . .” Id. Also during that time, Plaintiff states that “the heat inside the room was 120 degrees . . . without any air flow . . . [and he was] still in extremely tight leg and hand restraints, and belly chain around waist [which] cut[] off [his] air supply to the point where Plaintiff passed out and had to be revived by a EMT-George on evening watch . . . .” Id. Plaintiff alleges that EMT-George told him “in front of a Lt. Carwascillo [that he] should've let [Plaintiff] die for all the trouble [he has] caused around here filing all the lawsuits against Lewisburg staff like EMT-Potter, EMT-Walls, and Doctor Pigos who I work with and are good friends of mine . . . .” Id. Plaintiff claims that he “told EMT-George and Lt. Carwascillo that [he] needed to be taken out of ambulatory restraints, . . . the window inside the cell needed to be opened to let some air flow into the room as to cool the room due to the extreme heat and to unchain the belly chain from around [Plaintiff's] waist and chest area . . . .” Id. He states that these requests were refused. Id. Instead, Plaintiff alleges, “EMT-George began pulling on [Plaintiff's] wrists and hands to inflict severe pain and in a hurtful manner . . . .” Id.

         Also during the evening of March 28, 2013, Plaintiff alleges that “EMT-Potter came in with Lt. Dawkins into cell 101 G-Block and Plaintiff informed them to remove the leg and hand restraints also the belly chain so that [he] could breath but they refused.” (Doc. 1 at 11). According to Plaintiff, “Lt. Dawkins began acting like he was going to loosen the restraints but instead tightened them around [Plaintiff's] hands and wrists thus inflicting severe pain . . . .” Id. Plaintiff was removed from his restraints on March 29, 2013. Id. at13.

         Plaintiff claims that he “suffered from permanent nerve damage from these abusive attacks like tendinitis, permanent scarring around wrist and ankles, numbness, mental and emotional scarring for life and in constant pain at all times, suffering from symptoms of arthritis and joint pain and taking medication called Meloxicam 7.5 mg, also suffering symptoms from PTSD (post traumatic stress disorder) like nightmares, panic attacks, paranoia, suicidal tendencies . . . .” Id.

         By Memorandum and Order dated September 16, 2016, this Court granted, in part, and denied, in part, Defendant's motion for summary judgment. (Docs. 23, 24). Specifically, this Court granted summary judgment with respect to Plaintiff's claims seeking monetary damages for any due process claim arising out of his disciplinary proceeding that has not been overturned or invalidated and the intentional tort claims advanced against EMT Barth and EMT George. Id.

         Defendant's motion for summary judgment was denied as to Plaintiff's negligence claims and remaining intentional tort claims. Id. In particular, the Court found the following facts in dispute: 1) whether Plaintiff became disruptive in his cell on March 28, 2013; 2) whether Plaintiff was medically assessed and found to have no injuries after being removed from his cell; and 3) whether the ambulatory restraints placed on Plaintiff were excessively tight and caused Plaintiff to suffer injuries. The parties were then permitted thirty (30) days within which to file any additional dispositive motions. Id.

         On October 12, 2016, Defendant filed a second motion for summary judgment. (Doc. 26). On October 26, 2016, Defendant filed a statement of facts, and brief in support. (Docs. 35-36). The motion is fully briefed and is ripe for disposition. For the reasons stated below, Defendant's motion will be granted.

         II. STANDARD OF REVIEW

         Pursuant to Federal Rule of Civil Procedure 56(a) “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record ... or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). “Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied 507 U.S. 912 (1993).

         However, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no ...