United States District Court, M.D. Pennsylvania
JANICE SHORTER, Personal Representative and Legal Guardian of DONSHAY SAYLES, Plaintiff
CHARLES E. SAMUELS, JR., et al., Defendants
Malachy E. Mannion, United States District Judge.
before the court is the report and recommendation of Judge
Arbuckle, (Doc. 81), recommending that the motion for
judgment on the pleadings filed on behalf of Bivens
Defendants, (Doc. 48), be granted in part, and denied in
part. Bivens Defendants filed objections to the
report, (Doc. 82). Upon review, the report will be adopted in
part. The Defendants' motion will be granted in part, and
denied in part.
of relevant background, on March 22, 2017, plaintiff Janice
Shorter, as the personal representative and legal guardian
for Donshay Sayles, formerly an inmate at
USP-Canaan,  filed a Second Amended Complaint
(“SAC”), (Doc. 23), in this combined
Bivens action, pursuant to 28 U.S.C. §1331,
as well as tort action, pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §2671, et
seq. Plaintiff seeks compensatory and punitive damages
as well as injunctive and declaratory relief from defendants
for severe injuries Sayles allegedly sustained when he was
assaulted by his cellmate, Joseph Wing, on May 16, 2014. On
January 15, 2015, Wing pled guilty to assault and attempted
murder regarding his attack on Sayles.
SAC, plaintiff raises nine counts, including five
constitutional claims against defendants, who are BOP staff
and officials, under the First and Eighth Amendments, and
three counts of negligence and one count of intentional
infliction of emotional distress (“IIED”) against
the Untied States under the FTCA.
22, 2017, defendants filed their answer and affirmative
defenses to plaintiff's SAC. (Doc. 26). On July 10, 2019,
Judge Arbuckle granted defendants' “Motion for
Leave to File Amended Affirmative Defenses and Answer”,
(Doc. 70), and deemed defendants' Amended Affirmative
Defenses and Answer, Doc. 70-3, as their operative response
to the SAC. (Doc. 74).
February 5, 2019, defendants Durkin, Ebbert, Fuller, Gintz,
Gonzalez, Hagemeyer, Kaszuba, McCauley, Norwood, Olver,
Pedone, Samuels, Sudul, Vinton, and Vizcaino
(“Bivens Defendants”) filed a motion for
judgment on the pleadings regarding plaintiff's
constitutional claims in Counts I, II, III, IV, and V of the
SAC. (Doc. 48). The motion was briefed.
October 2, 2019, Judge Arbuckle issued his report, (Doc. 81),
recommending that Bivens Defendants' motion for
judgment on the pleadings be denied as to Counts I, II, III,
and IV, and that it be granted as to Count V (Retaliation).
October 9, 2019, Bivens Defendants filed objections
to the report. Defendants' objections primarily pertain
to Judge Arbuckle's finding that their motion should be
denied with respect to Count II, Failure to Supervise claim
against four supervisory BOP officials. (Doc. 82). However,
Defendants also object to Judge Arbuckle's findings that
plaintiff's constitutional claims in Counts I, III and IV
do not present a new context of Bivens claims.
Plaintiff filed a response to the objections on October 30,
2019. (Doc. 85). Bivens Defendants then filed a
reply in support of their objections. (Doc. 86).
STANDARD OF REVIEW
objections are timely filed to the report and recommendation
of a magistrate judge, the district court must review de
novo those portions of the report to which objections
are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the
standard is de novo, the extent of review is
committed to the sound discretion of the district judge, and
the court may rely on the recommendations of the magistrate
judge to the extent it deems proper. Rieder v.
Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing
United States v. Raddatz, 447 U.S. 667, 676 (1980)).
those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good
practice, “satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72(b), advisory committee
notes; see also Univac Dental Co. v. Dentsply Intern.,
Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing
Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
1987) (explaining judges should give some review to every
report and recommendation)). Nevertheless, whether timely
objections are made or not, the district court may accept,
not accept, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.
essentially alleges that prison staff at USP-Canaan and BOP
officials failed to protect Sayles when he was attacked by
Wing in the SHU, that they were aware of the violence in the
SHU and continued the practice of housing violent inmates
with inmates in protected housing, and that they failed to
timely intervene during the attack, in violation of his
Eighth Amendment rights. Specifically, plaintiff alleges that
Bivens Defendants, knew or should have known that
Sayles, an African American and protective custody inmate,
faced an excessive risk to his safety in placing him in a
cell with Wing based on their knowledge of violence in the
SHU, based on Wing's prior assault of an African American
cellmate and, based on Wing's statement to prison staff
that he did not want to live with another African American
cellmate and that he would kill such a cellmate. Plaintiff
also raises a retaliation claim under the First Amendment
against defendants for allegedly taking retaliatory acts
against Sayles. Additionally, plaintiff alleges that the
United States was negligent since it beached its duty to
protect him, to intervene, and to conduct rounds in the
prison. Further, plaintiff raises an IIED claim against the
Count II of the SAC, plaintiff asserts a failure to supervise
claim against defendants Samuels, Norwood, Ebbert, and
Kaszuba (“Supervisory Defendants”). During the
relevant times of this case, Samuels was the Director of the
BOP and Norwood was the Northeast Regional Director of the
BOP. Ebbert was the Warden and Kaszuba was at a Captain at
USP-Canaan. Defendants contend that the four Supervisory
Defendants are entitled to judgment on the pleadings since
plaintiff has failed to sufficiently allege a claim of
supervisory liability, and that they were personally involved
in the violation of Sayles' constitutional rights as
required to state a cognizable claim under Bivens.
Defendants also contend that there is no remedy under
Bivens regarding plaintiff's failure to
supervise claim in Count II under the Eighth Amendment based
on Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1843
(2017). Specifically, Defendants contend that Judge
Arbuckle's report was erroneous regarding Count II,
“particularly its conclusion that [plaintiff's]
claims do not present a new context of Bivens
claims” since this case's facts are significantly
different from the facts in Bistrian v. Levi, 912
F.3d 79 (3d Cir. 2018).
Arbuckle first found that plaintiff's allegations were
sufficient to show that Samuels, Norwood, Ebbert, and Kaszuba
were personally involved in the violations of Sayles'
constitutional rights based on supervisory liability.
constitutional claims are filed pursuant to 28 U.S.C.
§1331, in accordance with Bivens v. Six Unknown
Named Agents of the Fed. Bureau of Narcotics, 403 U.S.
388, (1971). Under Bivens, the District Court has
federal question jurisdiction pursuant to 28 U.S.C.
§1331 to entertain an action brought to redress alleged
federal constitutional or statutory violations by a federal
actor. Bivens, supra. Pursuant to Bivens,
“a citizen suffering a compensable injury to a
constitutionally protected interest could invoke the general
federal question jurisdiction of the district court to obtain
an award of monetary damages against the responsible federal
official.” Butz v. Economou, 438 U.S. 478, 504
(1978). A Bivens-style civil rights claim is the
federal equivalent of an action brought pursuant to 42 U.S.C.
§1983 and the same legal principles have been held to
apply. See, Paton v. LaPrade, 524 F.2d 862,
871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp.
1486, 1492 (M.D.Pa. 1992); Young v. Keohane, 809
F.Supp. 1185, 1200 n. 16 (M.D.Pa. 1992). In order to state an
actionable Bivens claim, a plaintiff must allege
that a person has deprived him of a federal right, and that
the person who caused the deprivation acted under color of
federal law. See West v. Atkins, 487 U.S. 42, 48
(1988); Young v. Keohane, 809 F.Supp. 1185, 1199
establish liability for deprivation of a constitutional right
under §1983 [and Bivens], a party must show
personal involvement by each defendant.” Ashcroft
v. Iqbal,556 U.S. 662, 676-77 (2009) (“Because
vicarious liability is inapplicable to Bivens and
§1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.”);
see Santiago v. Warminster Twp.,629 F.3d 121, 130
(3d Cir. 2010). Liability under §1983 and
Bivens is personal in nature and can only follow
personal involvement in the alleged wrongful conduct shown
through specific allegations of personal direction or actual
knowledge and acquiescence. See Robinson v. City of
Pittsburgh,120 F.3d 1286 (3d Cir. 1997) (overturned on
other grounds) (citing Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988)). Acquiescence exists where
“a supervisor ...