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Njos v. United States

United States District Court, M.D. Pennsylvania

July 18, 2018

SCOTT NJOS, Plaintiff,
v.
UNITED STATES OF AMERICA Defendant.

          MEMORANDUM

          MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE. [1]

         I. Background

         Plaintiff, Scott Njos (“Njos”), an inmate formerly confined at the United States Penitentiary, Lewisburg (“USP-Lewisburg”), brought this action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2671 et. seq., for injuries he allegedly received on August 28, 2011. (Doc. 18). Plaintiff alleges that, while standing on a toilet in his USP-Lewisburg cell, cleaning the upper walls of his cell, the ventilation grate and surrounding bricks fell on him, causing him to fall from the toilet. The Plaintiff has exhausted his administrative remedies, and the court has jurisdiction under 28 U.S.C. §1346(b).

         The Defendant, the United States of America, does not dispute that it owed a duty to Njos to exercise reasonable care and diligence in maintaining his cell. However, they dispute Plaintiff's claim that the upper walls of his cell were damaged during an earthquake that occurred on August 23, 2011, Plaintiff's claim that he put correctional staff on notice of the damage, and, that Plaintiff fell as a result of the damage. On September 12, 2017 the Court conducted a non-jury trial. As a result of the trial and the evidence presented, pursuant to Fed.R.Civ.P. 52(a), the Court makes the following findings of fact and conclusions of law based on a preponderance of the credible evidence.

         II. Findings of Fact

         On September 9, 2009, Petitioner was approved for a transfer from USP-Victorville to USP-Lewisburg based on the following rationale:

Inmate Njos has demonstrated very poor institutional adjustment at USP-Victorville as indicated by the 11 incident reports referenced above. The assaults and threats involved inmate Njos spitting on staff while attempting to strike them with his fists and yelling to staff statements such as “I am going to kill me a staff member; I promise you.” Inmate Njos attempted to escape from the SHU by cutting the bar of the cell window with a piece of hardened steel he removed from the shower drain. Inmate Njos also cut around the edge of the ventilation duct in an attempt to escape through the ventilation system. In addition, inmate Njos planned to ingest pills in an effort to be taken to the hospital. At the hospital, he wanted to surprise and over-power the officers, take their weapons and shoot them to effect his escape. Inmate Njos' disciplinary infractions are very disruptive to the security and orderly running of this institution. Additionally, inmate Njos poses a serious threat to the safety and welfare of staff and inmates as evidence by these incident reports. Due to the very serious threat inmate Njos poses to the secure and orderly running of this institution and the safety of staff and other inmates, it has been determined he requires placement in a correctional environment which affords greater security and supervision. Accordingly, it is requested inmate Njos be approved for transfer to a Special Management Unit (SMU) to place him in a facility commensurate with his security and supervision requirements.

(Doc. 161-2, Ex. 13, Request for Transfer).

         Between August 23, 2011 and August 28, 2011, Plaintiff, Scot Njos, was incarcerated at USP-Lewisburg, Pennsylvania in cell 324 on C-Block. On August 23, 2011, an earthquake occurred a few states away in Virginia, that rated 5.8 in magnitude. A conference call logged by the institution at 2:45 p.m. revealed that the institution “shook” from the earthquake in Virginia. There was no known damage to the institution and inmates remained locked-in. (Doc. 170, Lieutenant's Daily log). Plaintiff did not report any damage to his cell as a result of the earthquake, there are no work orders for repairs to Plaintiff's cell, nor was there damage to any other areas of the institution alleged to be related to the earthquake.

         According to Plaintiff on August 28, 2011, he was cleaning his cell with a three inch green scrub pad and cleaning solution provided by the prison. (N.T. at 154-199). He was doing this because inmates cooking near the grates in the cells below him caused soot and dust to rise up to Plaintiff's cell, coming out from the vent and staining his white walls. Id. In order to clean the wall around the grate, Plaintiff says he would stand on the toilet daily and clean the soot from this wall. Id. On August 28, 2011, while standing on the toilet, cleaning the wall, and talking with other inmates through the vent, Plaintiff allegedly slipped and fell off the toilet. Id. Contrary to Plaintiff's testimony the evidence presented showed that inmates are not required to stand on their toilets to clean ceiling or walls. (N.T. at 85). Inmates are not accountable for areas they cannot reach in their cell. Id. at 88.

         Correctional Officer Romig was not working on August 23, 2011, (N.T. at 41), however he was working on August 26, 27 and 28, 2011. (N.T. at 42). Officer Romig has no recollection of the August 23, 2011 earthquake nor of Plaintiff informing him on August 28, 2011 that he was standing on the toilet, cleaning his cell, when he fell off the toilet and hurt himself. (N.T. at 39-48).

         Correctional Officer Shirk was working on August 23 through August 28, 2011, but never felt the earthquake nor was he informed by Plaintiff of any damage in Plaintiff's cell. (N.T. at 59-85).

         On August 28, 2011 at 9:30 pm, Plaintiff and his cellmate were moved from C Block, Cell 324, to B01-117 as a result of a hole in their cell. (Doc. 161-2, Ex. 9, Housing Unit Log, Evening Watch). At approximately 9:35 pm, James Page, USP-Lewisburg Special Investigative Support Technician, acting on a radio communication from an unidentified range officer conducting a routine search, reported to C Block, Cell 324, to photograph wall cuts around the ventilation grate located on the cell wall. (N.T. at 96-128). Seven digital photos were taken of the cell wall, depicting the wall cuts. (Doc. 161-2, Ex. 12, Photos).

         On August 29, 2011, Facility Manager Neuhard authorized a Facility Work Request for Maintenance Supervisor, Joseph Candelora, to “repair vent and 2 blocks in plumbing wall of cell C-324. (Doc. 161-2, Ex. 10, Facility Work Request). That same day, Mr. Candelora repaired the ...


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