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Shorter v. Samuels

United States District Court, M.D. Pennsylvania

December 3, 2019

JANICE SHORTER, Personal Representative and Legal Guardian of DONSHAY SAYLES, Plaintiff
CHARLES E. SAMUELS, JR., et al., Defendants

          ARBUCKLE, M.J.


          Malachy E. Mannion, United States District Judge.

         Pending 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.

         I. BACKGROUND [1]

         By way 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, [2] filed a Second Amended Complaint (“SAC”), (Doc. 23), in this combined Bivens[3] 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.

         In the 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.[4]

         On May 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).

         On 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.

         On 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).

         On 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).


         When 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)).

         For 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.

         III. DISCUSSION [5]

         Plaintiff 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 United States.

         In 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).

         Judge 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.

         Plaintiff's 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 (M.D.Pa. 1992).

         “To 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 ...

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