Opinion
Civil Action 4:22-CV-0006
03-28-2023
DWAYNE SCOTT, Plaintiff v. UNITED STATES OF AMERICA et al., Defendants
MANNION, D.J.
REPORT & RECOMMENDATION
(On Defendant United States of America's Motion to Dismiss Doc. 9)
WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE
I. INTRODUCTION
Federal Inmate Dwayne Scott (“Plaintiff”) was attacked by his cellmate at USP Canaan. (Doc. 1). Staff arrived at the cell door and ordered the cellmate to stop. The cellmate did not stop until BOP staff deployed pepper spray. After the first spray, the cellmate stopped attacking. Despite this surrender the staff deployed another round of pepper spray and then shot capsules containing pepper spray into the cell. Following the attack, Plaintiff filed this counseled, fee paid Complaint seeking money damages from the United States under the Federal Tort Claims Act (“FTCA”), and from eleven prison employees under Bivens (hereinafter the “Bivens Defendants”). Before the Court is the United States' Motion to Dismiss. (Doc. 9). After reviewing the motion and the parties' briefs, we find that the United States' Motion should be granted in part and denied in part. This report and recommendation explains that result. Before reaching the merits, it will be helpful to review the legal standards to be applied to this motion to dismiss.
II. LEGAL STANDARDS
A. Motion to Dismiss Under Federal Rule of Civil
Procedure 12(b)(1) Standard
Federal Rule of Civil Procedure 12(b)(1) provides the mechanism for a party to move for dismissal due to the court's lack of subject matter jurisdiction. “Subjectmatter jurisdiction defines the court's authority to hear a given type of case.”Subject matter jurisdiction “represents the extent to which a court can rule on the conduct of persons or the status of things.” Under Rule 12(b)(1), “[w]hen subject matter jurisdiction is challenged . . . the plaintiff must bear the burden of persuasion.” In deciding a Rule 12(b)(1) motion, the court must first determine whether the “motion presents a “facial” attack or a “factual” attack on the claim at issue, because that distinction determines how the pleading must be reviewed.”
United States of America v. Morton, 467 U.S. 822, 828 (1984).
Carlsbad Tech. Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing Black's Law Dictionary, 870 (8th ed. 2004) (internal quotations omitted)).
Kehr Packages Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
Const. Party of Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014) (quoting In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012) (internal quotation marks omitted)) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
A facial attack . . . is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court because, for example, it does not present a question of federal law, or because there is no indication of a diversity of citizenship among the parties, or because some other jurisdictional defect is present. Such an attack can occur before the moving party has filed an answer or otherwise contested the factual allegations of the complaint. A factual attack . . . is an argument that there is no subject matter jurisdiction because the facts of the case . . . do not support the asserted jurisdiction.
So, for example, while diversity of citizenship might have been adequately pleaded by the plaintiff, the defendant can submit proof that, in fact, diversity is lacking ....In sum, a facial attack ‘contests the sufficiency of the pleadings,' ‘whereas a factual attack concerns the actual failure of a [plaintiff's] claims to comport [factually] with the jurisdictional prerequisites.'”
Id. at 358 (citing Mortensen, 549 F.2d at 891 (quoting In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012) (internal quotation marks omitted)) (quoting CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008) (internal quotation marks omitted)).
When reviewing a facial attack, “the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” The court must also “consider the allegations of the complaint as true.” Therefore, the court is “to apply the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party.”
Gould Electronics Inc. v. United States of America, 220 F.3d 169, 176 (3d Cir. 2000). See also Moore v. Angie's List Inc., 118 F.Supp.3d 802, 806 (E.D. Pa. 2015).
Mortensen, 549 F.2d at 891.
Constitution Party, 757 F.3d at 358 (citing In re Schering Plough Corp. Intron, 678 F.3d at 243).
On the other hand, a factual attack permits “a court [to] weigh and consider evidence outside the pleadings.” “[T]he trial court is free to weight the evidence and satisfy itself as to the existence of its power to hear the case.” In doing so, “no presumptive truthfulness attaches to plaintiff's allegations ” While evaluating a factual attack, “the court may consider evidence outside the pleadings.” A factual attack on subject matter jurisdiction requires a factual dispute and “attacks the factual allegations underlying the complaint's assertion of jurisdiction, either through the filing of an answer or ‘otherwise present[ing] competing facts.'” A Rule 12(b)(1) factual attack “should be granted sparingly” as the “disputed factual issue [ ] goes both to the merits and jurisdiction.” The court must “demand less in the way of jurisdictional proof than would be appropriate at a trial stage.”
Id. at 358 Gould Elecs. Inc., 220 F.3d at 176 (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir.1997)). See also Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016).
Mortensen, 549 F.2d at 891.
Id.
Gould Electronics Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
Davis, 824 F.3d at 346 (quoting Constitution Party, 757 F.3d 347, 358).
Id. at 350.
Mortensen, 549 F.2d at 892.
B. Discretionary Function Exception to the Federal Tort Claims Act
“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” Through the Federal Tort Claims Act (“FTCA”), the United States has allowed a limited waiver of its sovereign immunity for claims alleging tortious conduct by a federal employee.The United States may be liable for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
United States v. Mitchell, 463 U.S. 206, 212 (1983).
28 U.S.C. § 1346(b)(1), § 2674.
No other waiver of sovereign immunity for such tort liability exists. “[S]trict adherence with the terms and requirements of the FTCA is jurisdictional and cannot be waived.”
Dilg v. United States Postal Serv., 635 F.Supp. 406, 407 (D.N.J 1985) (citing Bialowas v. United States, 443 F.2d 1047, 1048-49 (3d Cir. 1971)).
The FTCA has a number of built-in exceptions to its waiver of sovereign immunity. One of those exceptions is known as the discretionary function exception (“DFE”). The exception provides
The provisions of this chapter and section 1346(b) of this title shall not apply to
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused.
The DFE “marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” When deciding whether the DFE applies, the “court must [first] identify the conduct at issue.” Once the conduct has been identified the court moves on to a two-step inquiry to determine whether the DFE applies.
United States v. Varig Airlines, 467 U.S. 797, 808 (1984).
S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 332 (2012).
Id. at 332-33.
“First, we ask whether the challenged conduct involved an element of judgment or choice, which depends on whether there is a federal statute, regulation, or policy [that] specifically prescribes a course of action for an employee to follow.” If a course of action is specifically prescribed then the DFE is inapplicable because “the employee has no rightful option but to adhere to the directive.” If a course of action is not specifically prescribed, then the court proceeds to the second step.
Rinaldi v. United States, 904 F.3d 257, 273 (3d Cir. 2018) (quoting Mitchell v United States, 225 F.3d 361, 363 (3d Cir. 2000)) (internal quotation marks omitted).
Berkovitz v. United States, 486 U.S. 531, 536 (1988).
S.R.P. ex rel. Abunabba, 676 F.3d at 333.
“Second, if the act does involve judgment, we ask whether the judgment involved is the kind that the discretionary function exception was designed to shield.” The DFE will only except those actions and decisions “based on considerations of public policy.” The focus at this second prong is whether the employees actions are “susceptible to policy analysis,” but a court does not focus on the employee's “subjective intent in exercising the discretion . . . .”
Rinaldi, 904 F.3d at 273 (quoting Mitchell, 225 F.3d at 363) (internal quotation marks omitted).
United States v. Gaubert, 499 U.S. 315, 323 (1991).
Id. at 325.
While the plaintiff initially “bears the burden of establishing that his claims fall within the scope of the FTCA's waiver of the federal government's sovereign immunity (i.e., that the requirements of 28 U.S.C. § 1346(b)(1) are met), the Government has the burden of proving the applicability of the discretionary function exception.”
S.R.P ex rel. Abunabba, 676 F.3d at 333.
With these legal standards in mind we now turn to the relevant factual background.
III. BACKGROUND & PROCEDURAL HISTORY
This case began on January 3, 2022, when Plaintiff filed his Complaint. (Doc. 1). As Defendants Plaintiff names:
1. The United States (US DOJ/US BOP);
2. Joshua Kiddish (health services unit at USP-Canaan);
3. Lieutenant Bodge (BOP Staff as SHU at USP-Canaan);
4. Lieutenant P. O'Kane (BOP Staff at USP-Canaan);
5. B. Price (security officer at USP-Canaan);
6. Lieutenant C. Frisk (USP-Canaan);
7. Lieutenant J. Connor (USP-Canaan);
8. C. Walker (BOP employed security officer at USP-Canaan);
9. R. Condella (BOP employed security officer at USP-Canaan);
10. Charles Maiorana (warden at USP-Canaan);
11. Michael Carvajal (director of the BOP/Washington, D.C.); and
12. A. Simyan (BOP employed security officer at USP-Canaan).
Plaintiff brings five claims. (Doc. 1). Plaintiff's first claims against the “Bivens Defendants.” (Doc. 1, pp. 9-13). Relevant to this motion, Plaintiff brings a claim against the United States under the FTCA. (Doc. 1, p. 13). On July 25, 2022 United States filed the instant Motion to Dismiss. (Doc. 9).
According to the Complaint, Plaintiff was incarcerated at USP-Canaan at the time of the events giving rise to this action. (Doc. 1, ¶¶ 1-2, 34). While an inmate there, Plaintiff was housed in the Special Housing Unit (“SHU”) due to his need for special medical treatment. (Doc. 1, ¶ 35). Plaintiff has been diagnosed with Asthma, COPD, and “related raspatory [sic] conditions.” Id. at ¶ 7.
When Plaintiff believed prison staff had violated his basic rights, he would not “sit idly by” but would routinely file administrative complaints against the offender. (Doc. 1, ¶ 3). Plaintiff alleges that these complaints frustrated Bureau of Prisons (“BOP”) staff and in retaliation for his complaints, inmate Johnathan Riley was transferred to Plaintiff's cell at Defendant Bodge's direction. (Doc. 1, ¶¶ 4, 38). Mr. Riley had a reputation and a history of infractions which included several “unprovoked and violent attacks” against his cellmates. Id. at ¶ 39. Plaintiff alleges that Mr. Riley told him Lieutenant Bodge had celled the two men together because of the numerous administrative complaints Plaintiff had filed. Id. at ¶ 41.
Fearing for his safety, Plaintiff petitioned Lieutenant O'Kane for relocation and made “numerous” administrative requests to be relocated to a different cell. (Doc. 1, ¶¶ 42, 44). Lieutenant O'Kane denied Plaintiff's request, affirming Lieutenant Bodge's decision to cell Mr. Riley and Plaintiff together. Id. at ¶ 43. At this time, other cells on the SHU block were vacant where Mr. Riley or Plaintiff could have been relocated. Id. at ¶¶ 40, 45. “Despite these repeated requests to numerous individuals,” Plaintiff remained celled with Mr. Riley for just over a month. Id. at ¶ 47.
On January 3, 2020, Defendant Kiddish from Health Services made rounds to distribute medication to prisoners, including Plaintiff. (Doc. 1, ¶ 49). Defendant Kiddish was delivering a battery for Plaintiff's CPAP machine, which Plaintiff needed due to his respiratory illnesses. Id. at ¶¶ 50-51. Plaintiff alleges that the named Defendants knew or should have known of these illnesses as he was routinely treated by doctors at USP-Canaan. Id. at ¶ 52. As Defendant Kiddish approached the cell, Mr. Riley began attacking Plaintiff, punching and striking him. Id. at ¶¶ 53-54. Defendant Kiddish alerted fellow staff and at least six responded: Lieutenants C. Frisk and J. Connor, and Security Officers B. Price, C. Walker, A. Simyan, and R. Condella. Id. at ¶¶ 55-56.
Plaintiff alleges that when the staff arrived, they ordered Mr. Riley to stop, but he did not do so. (Doc. 1, ¶ 58). Instead of opening the door to restrain the inmates, the air vent to the cell was shut and Defendant Price immediately used BOP-issued pepper spray. Id. at ¶¶ 59-60. Plaintiff alleges no officers inquired about any reasons pepper spray may be unadvisable due to Plaintiff's respiratory illnesses, nor did Defendant Kiddish alert his fellow officers of the risk of using pepper spray on Plaintiff. Id. at ¶¶ 61-62. After this first stream of pepper spray was sprayed, the attack ceased and both men got on the floor, rendering them no longer a threat to each other or any BOP staff. Id. at ¶¶ 65-67.
Despite this surrender, Defendant Price proceeded to fire a second stream of pepper spray into the cell. Id. at ¶ 68. After the second spray, the attack had still ceased, and Plaintiff and Mr. Riley continued to no longer represent a threat to each other or BOP staff. Id. at ¶ 69. Again, despite this, Defendant Frisk proceeded to use a gas-powered firearm to fire multiple capsules (pepper balls) into the cell which hit the wall and exploded, releasing more pepper spray into the cell. Id. at ¶¶ 70-71.
Plaintiff alleges these unnecessary uses of force were done without any regard for the increased risk it may pose to him. Id. at ¶ 72. Plaintiff also alleges the BOP “was forced to acknowledge [that Plaintiff] did nothing to warrant this excessive use of force that placed him, and individual diagnosed with Asthma, COPD, and related raspatory [sic] conditions in unnecessary danger.” Id. at ¶ 7.
After the third use of pepper spray, the men “were then” ordered to stand and place their hands through the cell door, and both complied. (Doc. 1, ¶¶ 74-75). Their hands were secured behind their back and they were then taken for showers and decontamination, and BOP staff took photographs of Plaintiff's injuries resulting from the attack. Id. at ¶¶ 76-77, 82. Plaintiff was treated for bumps and bruises resulting from the attack and for the use of the pepper spray. Id. at ¶ 87.
Defendants Frisk, Connor, Price, Walker, Simyan and Condella filed reports about the incident. (Doc. 1, ¶ 83). Defendant Frisk and Defendant Price's reports use identical language and state that Plaintiff and Mr. Riley remained “combative” despite having their hands secured behind their backs. Id. at ¶ 84. The reports from Defendants Connor and Kiddish do not include any mention of that continued combativeness between Plaintiff and Mr. Riley. Id. at ¶ 85. Plaintiff does not have reports from Defendants Walker, Simyan, and Condella. Id at ¶ 86.
Plaintiff alleges a camera outside his cell recorded the incident. (Doc. 1, ¶ 78). Plaintiff filed an administrative tort claim respecting this incident, and as such, that video should have been preserved in anticipation of this litigation. Id. at ¶ 79. Additionally, BOP policy requires, where practicable, that use of force incidents be recorded with a camera. Id. at ¶ 80. Plaintiff states that he “has petitioned the BOP using the appropriate administrative remedies which have been denied and, thus, his claims are fully exhausted.” Id. at ¶ 10.
Plaintiff states that, recognizing its danger, the BOP has policies in place that limit the use of oleoresin capsicum, also known as pepper spray. (Doc. 1, ¶¶ 29, 64). That policy requires the spray to be used at a distance greater than four feet and be aimed at the individual, not generally sprayed into an area. Id. at ¶ 30. Plaintiff alleges the BOP's use of force policy also requires that medical staff be consulted before chemical agents or “pepper mace” is used. Id. at ¶ 31. Plaintiff alleges medical staff was on-site, but that Defendants Kiddish, Price, Frisk, Connor, Walker, Simyan, and Condella failed to consult them. Id. at ¶ 33.
As relief Plaintiff seeks compensatory damages, reasonable attorney's fees and litigation costs, pre- and post-judgment interest, and any other relief the Court deems appropriate. (Doc. 1, ¶ 132).
With this background in mind we now turn to our analysis of these facts.
IV. ANALYSIS
Plaintiff pleads as Count Five: Federal Torts Claim Act Against the United States through its named agents. Under that heading Plaintiff appears to bring three separate FTCA claims.
124. As an alternative form of liability, Mr. Scott asserts that the United States, pursuant to 28 U.S.C. § 1346 is liable for damages of its agents and employees.
125. Specifically, Defendants Bodge, O'Kane and Charles Maiorana acted intentionally, willfully, or negligently when they placed Mr. Scott in a cell with Mr. Riley, which resulted in the attack by Mr. Riley upon Mr. Scott. Mr. Riley's attack was the reasonable and foreseeable consequence of their actions.
126. Defendants B. Price and C. Frisk acted intentionally, willfully, or negligently when they repeatedly and without justification sprayed harmful chemical into Mr. Scott's cell and unjustifiably assaulted and battered him.
127. And Defendants Joshua Kiddish, Lt. J. Connor, C. Walker, A. Simyan, and R. Condella violated a known duty to warn and stop their colleagues from continuing and escalating the unnecessary assault on Mr. Scott. Joshua Kiddish, Lt. J. Connor, C. Walker, A. Simyan, and R. Condella negligently failed to alert their colleagues to the known danger. (Doc. 1, ¶¶ 124-127).
In their briefs, both parties provide the legal standards for both facial and factual challenges to Plaintiff's Complaint. Plaintiff states we must accept all the allegations in the Complaint as true (Doc. 23, p. 3), but then states that the United States has brought a factual challenge to the Court's jurisdiction because it relies on statutes, BOP regulations and Program Statement (Doc. 23, p. 7). The United States similarly states we must assume Plaintiff's allegations are true (Doc. 14, p. 10 n.2) and then states we are free to consider materials outside of the Complaint to resolve factual disputes surrounding the jurisdictional challenge, which is true for a factual challenge (Doc. 14, p. 12). If the United States is bringing a factual challenge, then we are not required to accept all the allegations in the Complaint as true.
We treat the United States' Motion regarding the claim about the placement of Mr. Riley and Plaintiff in a cell together as a facial challenge. The United States does not appear to attack any factual allegations or present competing facts relating to this claim but argues that the DFE applies to the actions plead in the Complaint.
We treat the United States' Motion regarding the claims for unjustifiable use of force and failure to intervene and alert to a known danger as a factual challenge. In his Complaint, in the Facts section, Plaintiff alleges that the BOP has policies limiting the use of pepper spray that have certain requirements such as being aimed at the individual causing the disturbance, and that medical staff be consulted before the use of pepper spray. (Doc. 1, ¶¶ 29-31). The United States contests what policy applies, and contests Plaintiff's statement that there is a requirement that medical staff be consulted prior to the use of pepper spray. (Doc. 14, pp. 20-23).
We will now discuss each claim in turn.
A. Placement of Plaintiff in a Cell with Mr. Riley
Plaintiff brings an FTCA claim alleging the United States is liable for damages where Defendants Bodge, O' Kane, and Maiorana “acted intentionally, willfully, or negligently when they placed Mr. Scott in a cell with Mr. Riley.” (Doc. 1, ¶ 125). The United States argues that this claim arises out of the decision to cell Mr. Riley and Plaintiff together is a decision categorically excepted by the discretionary function exception. (Doc. 14, pp. 15-20; Doc 40, pp. 2-5). It is further argued that the DFE applies even if the discretion exercised was abused. Id. Plaintiff argues that he does not allege in the Complaint that Mr. Riley was moved into Plaintiff's cell as part of a housing decision. (Doc. 23, p. 11). Instead, Plaintiff alleges he seeks liability against the United States for “the BOP's staffs decision to utilize unauthorized disciplinary procedures to punish Mr. Scott via cellmate assignment.” (Doc. 23, p. 3) (emphasis in original). In reply, the United States argues that even where a celling decision was made in retaliation and with a desire to punish, the DFE still applies. (Doc. 40, p. 4).
In performing our analysis we must first identify the conduct at issue before we move on to the discretionary function test. The parties appear to disagree on the relevant conduct. Defendant argues it is the placement of Mr. Riley in Plaintiff's cell, effectively a cellmate assignment decision. (Doc. 14, pp. 15-20; Doc. 40, pp. 25). Plaintiff disagrees and states that “the complaint does not allege that Lt. Bodge moved Riley to Mr. Scott's cell as part of a housing decision. Rather, it was a form of un-sanctioned discipline ....” (Doc. 23, pp. 3-4, 10-12). The ‘it' in Plaintiff's statement is the placement of Mr. Riley into Plaintiff's cell. The placement of Mr. Riley into Plaintiff's cell was a decision about who to cell Plaintiff with, a cellmate assignment decision. Plaintiff may not explicitly allege that the placement was made as part of a housing decision, but his claim is still centered on the placement of Mr. Riley in Plaintiff's cell. Plaintiff challenges that placement, contending it was made as unsanctioned discipline, but that is still a challenge to the placement.
Plaintiff states in his Brief in Opposition that the FTCA claim seeks liability for the “BOP's staffs decision to utilize unauthorized disciplinary procedures to punish Mr. Scott via cellmate assignment.” (Doc. 23, p. 3) (emphasis in original). However, the Complaint does not appear to allege there was a decision to use unauthorized disciplinary procedures to punish Plaintiff, except in the broad sense that he alleges the placement of Mr. Riley was in retaliation. The Complaint also does not appear to allege the decision to place Mr. Riley in a cell with plaintiff was “a form of un-sanctioned discipline,” again except for in the broad sense of the alleged retaliation. (Doc. 23, p. 11). Nor does the Complaint mention or reference the BOP Inmate Discipline Program, Program Statements, 18 U.S.C. § 4042 charging the BOP to protect, instruct and discipline inmates, or 28 C.F.R. Part 541, regulations on Inmate Discipline and Special Housing Units that Plaintiff relies on in his Brief in Opposition. (Doc. 23, p. 4-5,11). Plaintiff cannot amend his Complaint through his Brief in Opposition.
An electronic search of Plaintiff's Complaint shows that ‘unauthorized,' ‘procedure(s),' ‘discipline,' ‘unsanctioned/un-sanctioned,' ‘punish' and ‘utilize/utilization' do not appear in the Complaint. ‘Disciplinary' appears once where Plaintiff states “Mr. Riley had a length disciplinary history ” (Doc. 1, ¶ 5). ‘Punishment' appears three times, each time in the phrase “cruel and unusual punishment.” (Doc. 1, ¶ 101, ¶ 111, ¶ 122).
Certainly the Complaint alleges that Defendants Bodge and O'Kane retaliated against Plaintiff for filing numerous administrative complaints by placing Mr. Riley in his cell. (Doc. 1). To the extent Plaintiff is seeking bring a retaliation claim under the FTCA, “a retaliation claim is not viable under the FTCA, as the FTCA does not provide a remedy for constitutional torts.” Dorsey v. Peter, No. 3:19-CV-0113, 2020 WL 881134, at *11 (M.D. Pa. Feb. 21, 2020).
Reed v. Chambersburg Area Sch. Dist., 951 F.Supp.2d 706, 720 (M.D. Pa. 2013).
Plaintiff explicitly states his FTCA claims in his Complaint. As relevant here, Plaintiff alleges the United States “is liable for damages of its agents and employees. Specifically, Defendants Bodge, O'Kane, and Charles Maiorana acted intentionally, willfully, or negligently when they placed Mr. Scott in a cell with Mr. Riley, which resulted in the attack by Mr. Riley upon Mr. Scott. Mr. Riley's attack was the reasonable and foreseeable consequence of their actions.” (Doc. 1, ¶¶ 124-125) (emphasis added). This is a claim centered upon the placement of Mr. Riley in Plaintiff's cell, a cellmate assignment decision.
Having identified the conduct at issue, we now proceed to the discretionary function test. The Third Circuit has held that BOP housing and cellmate assignments meet the DFE. At the first prong of the test, the Third Circuit has found that “housing and cellmate assignments unquestionably involve an ‘element of judgment or choice'” and that there is no federal statute, regulation or policy specifically prescribing how such assignments are to be made. While 18 U.S.C. § 4042(a)(2) and (3), impose a duty on the BOP to protect, instruct, and discipline inmates, “neither that provision nor any other ‘federal statute, regulation or policy' can be said to ‘specifically proscribe[ ] a course of action' for such assignments that BOP officials must follow.” Thus, the first prong of the test is satisfied.
Rinaldi, 904 F.3d at 273.
Id. (quoting Mitchell, 225 F.3d at 363) (internal quotation marks omitted).
Id. (quoting Mitchell, 225 F.3d at 363) (internal quotation marks omitted).
At the second prong, “it is also well established that decisions regarding inmate housing and cellmate assignments and regarding how best to protect one inmate from the threat of attack by another inmate are ‘of the kind that the discretionary function exception was designed to shield,' thus satisfying the second step ....” With both prongs of the test satisfied, the DFE applies to cellmate assignment decision like the one Plaintiff complains of here.
Coma by & through Coma v. United States, No. 4:19-CV-00286, 2021 WL 5761110, at *8 (M.D. Pa. Aug. 3, 2021) (quoting Rinaldi, 904 F.3d at273-74) (internal quotation marks omitted), report and recommendation adopted, No. 4:19-CV-00286, 2022 WL 1485717 (M.D. Pa. Mar. 31, 2022). See Rinaldi, 904 F.3d at 273-74 (quoting Mitchell, 225 F.3d at 363); Donaldson v. United States, 281 Fed.Appx. 75, 77-78 (3d Cir. 2008) (quoting Mitchell, 225 F.3d at 363).
Plaintiff seems to concede this issue, stating the United States claims the DFE applies to claims the BOP improperly housed, celled, and kept together incompatible and violent inmates and “this is true as far as it goes ....” (Doc. 23, pp. 10-11). This is when Plaintiff then states his Complaint does not allege the placement was made as part of a housing decision, but that it was unsanctioned discipline. (Doc. 23, p. 11). As discussed above, however, Plaintiff does not allege the placement was made as unsanctioned discipline in his Complaint. He does allege the placement was retaliatory.
Even if the placement of Mr. Riley into a cell with Plaintiff was retaliatory, that decision still falls under the DFE. Even taking as true the allegations in Plaintiff's Brief in Opposition that the decision was made because Defendant's Bodge and O'Kane decided to use unauthorized disciplinary procedures to punish Plaintiff, and the move was a form of unsanctioned discipline, that decision still falls under the DFE. (Doc. 23, p. 11). 28 U.S.C. § 2680(a) provides that the United States' liability under the FTCA cannot be premised on “the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved be abused.” Thus, taking as true that Defendants Bodge and O'Kane did abuse their discretion regarding cell assignments and used it as a form of retaliation against Plaintiff, or that they used it as a form of unsanctioned discipline, the DFE still applies. The statute is clear that even where the discretion afforded is abused, the DFE remains applicable.
28 U.S.C. § 2680(a) (emphasis added).
This case is similar to Rinaldi v. United States. In that case, a federal prisoner brought an FTCA claim for negligence, alleging the BOP forced him to cell with another inmate that prison officials knew or should have known had threatened to kill that plaintiff. The plaintiff in Rinaldi, like Plaintiff here, alleged that he had filed numerous administrative complaints and was told by prison officials to stop or he would be moved and placed in a cell with another prisoner known for attacking cellmates. That placement was then made when he did not stop filing administrative complaints. The United States Court of Appeals for the Third Circuit found that the discretionary function applied. Plaintiff argues this case is distinguishable from Rinaldi because that case did not involve unauthorized, unsanctioned discipline. (Doc. 23, p. 11-12). However, though not explicitly articulated, that case appears to have involved unauthorized, unsanctioned discipline in the form of the same behavior Plaintiff complains of, placement of that plaintiff with a dangerous cellmate because he filed too many administrative complaints.The Third Circuit did not address whether the DFE applied in light of the cellmate assignment appearing to be done in retaliation or punishment. However, the Third Circuit did find that such cellmate assignment decisions were discretionary. The language of the FTCA makes clear that the DFE applies even “whether or not the discretion involved be abused.”
Rinaldi, 904 F.3d at 272-73.
Id. at 262-63.
Id. 272-73.
Id.
Id. at 262-63, 272-73.
Finally, Plaintiff argues that there may be intra-prison directives that impact the DFE analysis. (Doc. 23, p. 12). Plaintiff argues that without discovery he will not have the ability to learn whether any such intra-prison directives establish guidelines and policies constraining the decision-making of the unit officers in making informal discipline, cellmate assignment and other decisions at USP-Canaan. Id. Plaintiff relies on Middleton v. United States Fed. Bureau of Prisons where the Third Circuit found an internal series of orders and directions could impact the DFE analysis. However, in that case the three sets of orders and instructions for the FCI-Allenwood guards were known, but the District Court only considered the most generalized order. Here, they are unknown. Plaintiff alleges in his Brief in Opposition that there may be such orders or guidelines.
Middleton v. United States Fed. Bureau of Prisons, 658 F.App'x. 167, 171 (3d Cir. 2016).
Id.
In Coma by & through Coma v. United States, that plaintiff suggested there might have been prescriptive rules governing inmate investigations which then might prescribe whether certain inmates could be celled together. Judge Saporito found however that the complaint did not allege the violation of any such prescriptive rules and that the plaintiff could not amend his complaint through his brief in opposition. In adopting Judge Saporito's Report and Recommendation, Judge Wilson stated plaintiff's “reasoning that jurisdictional discovery might contain relevant information is speculative and not clearly necessary to the court's determination of the discretionary function exception.” Here, Plaintiff does not allege in his Complaint that there were or could have been guidelines that outline a policy that constrained Defendants Bodge and O'Kane's decision regarding cellmate assignments, informal discipline or other related issues. “In the context of this facial challenge to subject matter jurisdiction, where the United States has otherwise satisfied its burden of showing that the discretionary function exception applies, the plaintiff's resort to these unpled [guidelines] is insufficient to prevail.”
Coma by & through Coma v. United States, No. 4:19-CV-00286, 2021 WL 5761110, at *9 (M.D. Pa. Aug. 3, 2021), report and recommendation adopted, No. 4:19-CV-00286, 2022 WL 1485717 (M.D. Pa. Mar. 31, 2022).
Id.
Coma by & through Coma v. United States, No. 4:19-CV-00286, 2022 WL 1485717, at *6 (M.D. Pa. Mar. 31, 2022).
Coma by & through Coma, No. 4:19-CV-00286, 2021 WL 5761110, at *9.
The United States has met its burden of proving the DFE applies to this claim, and we lack subject matter jurisdiction over this claim. It will therefore be recommended that Count Five be dismissed as far as it alleges the United States is liable for Defendants Bodge, O'Kane and Maiorana where they “acted intentionally, willfully, or negligently when they placed Mr. Scott in a cell with Mr. Riley, which resulted in the attack by Mr. Riley upon Mr. Scott.” (Doc. 1, ¶ 125).
B. Use of Pepper Spray and Pepper Balls and Failure to Intervene and Alert to a Known Danger
Plaintiff brings two additional claims under the FTCA alleging the United States is liable “for damages of its agents and employees.” (Doc. 1, ¶ 124). Plaintiff brings a claim alleging liability for Defendants Price and Frisk “act[ing] intentionally, willfully or negligently when they repeatedly and without justification sprayed harmful chemical into Mr. Scott's cell and unjustifiably assaulted and battered him.” (Doc. 1, ¶ 126). Plaintiff also brings a claim alleging liability for Defendants Kiddish, Connor, Walker, Simyan, and Condella “violat[ing] a known duty to warn and stop their colleagues from continuing and escalating the unnecessary assault on Mr. Scott” and “negligently failed to alert their colleagues to the known danger.” (Doc. 1, ¶ 127). In their Brief in Support, the United States characterizes both claims as “boil[ing] down to the decision of how much force to employ in response to an emergency” meaning both claims “are subject to the same DFE analysis.” (Doc. 14, p. 11). Plaintiff does not object to this and we agree. Our analysis below therefore pertains to both claims.
The parties appear to agree on the conduct at issue, the response to Mr. Riley's attack on Plaintiff. The United States argues that the DFE bars FTCA claims that stem from how the BOP responds to emergencies such as inmate fights. (Doc. 14, pp. 20-23, Doc. 40, pp. 5-8). The United States cites to statutes, regulations and a Program Statement to show that the BOP is given discretion to determine how to respond to emergencies. The parties disagree on what Program Statement or regulations are relevant and whether the on-point policy affords BOP staff discretion in their response.
The United States contends that Program Statement 5566.06 is the on-point policy and provides BOP staff with discretion in determining using chemical munitions to respond to an emergency. (Doc. 14, pp. 20-22; Doc. 40, pp. 5-7). Plaintiff argues Program Statement 5576.06 is the on-point policy and provides BOP staff with more specific instructions regarding the use of pepper spray in emergencies that set limitations on its use and provide “strict mandates” that take away discretion from BOP staff. (Doc. 23, pp. 8-10). Regardless of which policy applies, the United States has not met its burden of showing the DFE applies here.
The United States argues that several courts, including one in the Middle District, have ruled that the BOP's use or non-use of force in responding to emergency situations falls under the DFE. (Doc. 14, pp. 21-22). However, Plaintiff alleges in his Complaint and Brief in Opposition that the second use of pepper spray and then the firing of the pepper balls occurred after both men were on the floor and no longer presented a threat to themselves or BOP staff. (Doc. 1, ¶¶ 67-74; Doc. 23, pp. 6-7, 8-10). In other words, Plaintiff argues there was no longer any emergency for the BOP staff to have had discretion to respond to when the second and third use of pepper spray and pepper balls occurred. This implies that any policy or Program Statements relating to emergency responses would be inapplicable.
The United States argues that, even using the policy Plaintiff (mistakenly in the United States' view) believes is on-point, that policy permits the “additional application of OC spray if the inmate fails to submit to restraints.” (Doc. 40, p. 8). The United States argues that Plaintiff's Complaint alleges he and Riley complied with orders to submit to restraints after the use of the pepper ball launcher, implying the second and third uses of pepper spray or pepper balls were permitted. Id.
It is true that Plaintiff's Complaint alleges compliance with orders to submit to restraints after the use of the pepper ball launcher. (Doc. 1, ¶¶ 74-76). However,
Plaintiff's Complaint does not allege he and Mr. Riley were ever given an earlier order to submit that they failed to comply with in between the first and second and second and third deployments of pepper spray and pepper balls. Plaintiff alleges that the pepper balls were shot into the cell and he and Mr. Riley “were then” ordered to submit to restraints. Id. at ¶ 74. This seems to at least suggest that it was only after the use of the pepper balls that such an order was given. The United States does not allege Plaintiff and Mr. Riley were given other previous orders to submit to restraints and did not comply and does not provide any evidence to that effect.
Nor does the United States otherwise rebut the Complaint's allegations that there was no longer an emergency justifying use of emergency force after the first deployment of pepper spray into the cell. The United States argues the DFE bars FTCA claims stemming from how the BOP responds to emergencies. (Doc. 14, pp. 20-23, Doc. 40, pp. 5-8). However, without knowing whether there was an ongoing emergency the Court cannot evaluate whether the DFE applies. The United States has not rebutted Plaintiff's allegations that there was no longer an emergency for the BOP staff to respond. The factual record before the Court is not developed enough for the Court to make a factual finding that there was an ongoing emergency.
Therefore, the United States has not met its burden of showing the DFE applies to these two claims. It will be recommended that Count Five be permitted to proceed to discovery as far as it alleges the United States is liable for its agents unjustified use of harmful chemical that unjustifiably assaulted and battered Plaintiff (Doc. 1, ¶ 126), and their failure to intervene and alert to a known danger (Doc. 1, ¶ 127).
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) The United States' Motion be GRANTED and Count Five be DISMISSED as far as it alleges the United States is liable for Defendants Bodge, O'Kane, and Charles Maiorana acting “intentionally, willfully, or negligently when they placed Mr. Scott in a cell with Mr. Riley, which resulted in the attack by Mr. Riley upon Mr. Scott.” (Doc. 1, ¶ 125).
(2) The United States' Motion be DENIED and Count Five be permitted to proceed to discovery as far as it alleges the United States is liable for Defendants Price and Frisk acting “intentionally, willfully, or negligently when they repeatedly and without justification sprayed harmful chemical into Mr. Scott's cell and unjustifiably assaulted and battered him.” (Doc. 1, ¶ 126).
(3) The United States' Motion be DENIED and Count Five be permitted to proceed to discovery as far as it alleges the United States is liable for Defendants Kiddish, Connor, Walker, Simyan and Condella “violat[ing] a known duty to warn and stop their colleagues from continuing and escalating the unnecessary assault on Mr. Scott” and “negligently fail[ing] to alert their colleagues to the known danger.” (Doc. 1, ¶ 127).
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.