Case Document 24 Filed 09/12/16 Page 1 of 1

UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF 

KIM MILLBROOK,
Plaintiff CIVIL ACTION NO. 3: 
(Judge Nealon)
v.
UNITED STATES OF AMERICA,
Defendant
ORDER

AND NOW, THIS 12TH DAY OF SEPTEMBER, 2016, for the reasons set

forth in the Memorandum of this date, IT IS HEREBY ORDERED THAT:

1.

Defendant?s motion for summary judgment, (Doc. 13), is
GRANTED in part and DENIED in part.

Defendant?s motion for summary judgment, is
GRANTED with respect to any of Plaintiff?s claims
seeking monetary damages for a 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.

Defendant?s motion for summary judgment, (LL), is
DENIED as to Plaintiff?s negligence claims and
remaining intentional tort claims.

The parties may ?le any additional dispositive motions
Within thirty (30) days of the date of this Order.

Failure to ?le a timely dispositive motion will result in
the above?captioned action being set down for pre?trial
conference and trial at the convenience of the Court.

fs/ William J. Nealon
United States District Judge

 

 

Case Document 23 Filed 09/12/16 Page 1 of 31

UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF 

KIM MILLBROOK, 
Plaintiff CIVIL ACTION NO. 3: 
(Judge Nealon)
v.
UNITED STATES OF AMERICA,
Defendant
MEMORANDUM

 

I. BACKGROUND

On April 29, 2015, Plaintiff, Kim Millbrook, an inmate currently
incarcerated in the United States Penitentiary, Lewisburg, 
Lewisburg?), instituted the above-captioned action by ?ling a pig complaint
pursuant to the Federal Tort Claims Act, 28 U.S.C. 2671 e_t seq, 
against Defendant, the United States of America. (Doc. 1). Plaintiff alleges that
on March 28, 2013, Lieutenant Johnson and Correctional Of?cer Stevens
approached Plaintiff?s cell and informed Plaintiff that he would be receiving a new
cellmate. at p. 5). Plaintiff allegedly re?lsed 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 homosexualclaims that he informed Lieutenant Johnson that ?the gangster disciples,

latin kings, District of Colombia (D.C.) members, and bloods and anyone

 

Case Document 23 Filed 09/12/16 Page 2 of 31

[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 (Doc. 1, p. 6).
Lieutenant Johnson allegedly informed Plaintiff that he ?did not care,? and that
Plaintiff ?was still getting a cellrnate or [he] would be extracted from the cell and
placed into? ambulatory restraintsI until he accepted a cellmate. He states
that Lieutenant Johnson and Correction Of?cer Stevens then left the area, but
Lieutenant Johnson returned later with an unknown Lieutenant and the ?use of
force team . . . Plaintiff claims he was then told to ?cuff up, [and] that
[he] was going into ambulatory restraints? because he refused his new cellmate.
Plaintiff alleges that he complied, but claims he was ?hand cuffed
excessively tight around [his] wrist area . . . 
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 ?oor 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.

 

Ambulatory restraints are de?ned by Federal Bureau of Prisons policy as
?approved soft and hard restraint equipment which allow the inmate to eat, drink,
and take care of basic human needs without staff intervention.? (Doc. 1, p. 84).

2

 

Case Document 23 Filed Page 3 of 31

(Doc. 1, p. 7). 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. . . 

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 (Li. at
p. 6). He claims that he was placed in that cell, which had its window closed and a
room temperature of at least a 120 degrees. Plaintiff states that he

?immediately began to sweat and gasp for air from the poor ventilation and passed

out. . . 

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 . . . .

at p. 8). He 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.? Additionally, Plaintiff claims he ?told them that [he] was being

 

Case Document 23 Filed Page 4 of 31

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.? (Doc. 1, p. at p. 13). 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
. at p. 8).

Plaintiff claims that he then ?received another visit from A.W. Wilson,? at
which time he claims to have ?informed 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.?
(Li at p. 9). 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.?
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 . . . Plaintiff claims he also informed

AW. Wilson that he was ?in severe pain and that the room was to[o] ?hot,? and

 

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also [his] feet, ?ngers, hands, and wrists were swollen and turned blue.? (Doc. 1,
p. 8). 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 . . . .

(Id at pp. 9-10).

According to Plaintiff, A.W. Wilson stated ?that he would not help
[Plaintiff] because [he] told Wilson] to have [Plaintiff] removed from the
ambulatory restraints and from the cell that was 120 degrees . . . (Q at p. 10).
Plaintiff alleges that AW. 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.? 
According to Plaintiff, A.W. Wilson then ?said that he would believe the staff
before he would believe [Plaintiff] anyday.? He claims that A.W. Wilson
also stated that he knew who Plaintiff ?was and for [him] to stop ?ling 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 on? Plaintiff. (Li. at pp. 10?11).

 

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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.? (Doc. 1, p. 11).

Plaintiff also claims that on the evening of March 28, 2013, cell 101 on 
Block was ?infested with bugs like roaches, and rodents like rats and mice . . . 
Also during that time, Plaintiff states that ?the heat inside the room was 120
degrees . . . without any air ?ow . . . [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 . . . 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 ?ling all the lawsuits against Lewisburg staff like EMT-

Potter, EMT-Walls, and Doctor Pigos who I work with and are good friends of

mine . . . 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 . . . d. J. He states that these requests were refused. (Q).

Instead, Plaintiff alleges, ?EMT~George began pulling on [Plaintiff?s] wrists and

 

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hands to in?ict severe pain and in a hurtful manner . . . (Doc. 1, p. 11).

Also during the evening of March 28, 2013, Plaintiff alleges that 
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.? 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 in?icting severe pain . . . Plaintiff was
removed from his restraints on March 29, 2013. at p. 13).

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 of arthritis and joint pain and taking medication called
Meloxicam 7.5 mg, also suffering from PTSD (post traumatic stress
disorder) like nightmares, panic attacks, paranoia, suicidal tendencies . . . 

On July 6, 2015, Defendant ?led a motion for summary judgment, statement
of facts, and brief in support. (Docs. 13-15). On August 18, 2015, Plaintiff ?led
his brief in opposition, declaration, statement of disputed facts, and exhibits.
(Docs. 18-21). Defendant did not ?le a reply, and the time for ?ling such has

passed. MD. Pa. L.R. 7.7. Therefore, Defendant?s motion for summary

 

Case Document 23 Filed 09/12/16 Page 8 of 31

judgment is ripe for disposition. For the reasons stated below, Defendant?s motion
will be granted in part and denied in part.
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); s_ee_ 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).
A disputed fact is ?material? if proof of its existence or nonexistence would
affect the outcome of the case under applicable substantive law. 1d; at 248; Gray

V. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of

 

material fact is ?genuine? if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v.

Local 514, United Bhd. of Carpenters and Joiners of Am, 927 F.2d 1283, 1287?88

 

(3d Cir. 1991).

 

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When determining whether there is a genuine issue of material fact,
generally, the court must View the facts and all reasonable inferences in favor of

the nonmoving party. Moore V. Tartler, 986 F.2d 682, 685 (3d Cir. 1993);

 

Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v.

 

Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid

 

summary judgment, however, parties may not rely on unsubstantiated allegations.
Parties seeking to establish that a fact is or is not genuinely disputed must support
such an assertion by ?citing to particular parts of materials in the record,? by
showing that an adverse party?s factual assertion lacks support from cited
materials, or demonstrating that a factual assertion is unsupportable by admissible
evidence. FED. R. CW. P. 991%, 477 U.S. at 324 (requiring
evidentiary support for factual assertions made in response to summary judgment).
The party opposing the motion ?must do more than simply show that there is some
metaphysical doubt as to the material facts.? Matsushita Elec. Indus. Co. V. Zenith
Ba_chg, 475 U.S. 574, 586 (1986). Parties must produce evidence to show the
existence of every element essential to its case that they bear the burden of proving
at trial, for ?a complete failure of proof concerning an essential element of the
nonmoving party?s case necessarily renders all other facts immaterial.? 991%,

477 U.S. at 323; see Harter v. G.A.F. Corn, 967 F.2d 846, 851 (3d Cir. 1992).

 

 

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Failure to properly support or contest an assertion of fact may result in the fact
being considered undisputed for the purpose of the motion, although a court may
also give parties an opportunity to properly provide support or opposition. FED. R.
CIV. P. 56(e). Moreover, ?at the summary judgment stage, a court may not weigh
the evidence or make credibility determinations; these tasks are left to the fact-

?nder.? Boyle v. Cntv. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998).

 

STATEMENT OF FACTS

From the pleadings, declarations and exhibits submitted therewith, the
following facts can be ascertained as undisputed:

On March 28, 2013, the acting Warden authorized the Use of Force Team to
remove Plaintiff from his cell. (Doc. 14, p. (DocForce
team was assembled and confrontation avoidance procedures were initiated with
positive results. (131.). Plaintiff voluntarily exited his cell and submitted to cuffs.
Plaintiff was then removed from the cell and escorted to a landing area.
Once at the landing area, Plaintiff was visually searched, metal detected,
medically assessed, given new clothes, and placed into ambulatory restraints.
(Doc. 14, pp. (Doc. 20, p. 4). Plaintiff remained in ambulatory restraints
from 1:10 pm. on March 28, 2013, until 8:00 am. on March 29, 2013. (Doc. 14,

p. (Doc. 20, p. 5).

10

 

Case Document 23 Filed 09/12/16 Page 11 of 31

While Plaintiff was in ambulatory restraints, BOP Health Services
performed a number of clinical encounters. (Doc. 14-1, pp. 26-28) (Doc. 20, pp.
(Dec. 19, pp. 10-11). On March 28, 2013, at 1:17 pm, EMT Matthew Barth
assessed Plaintiff in relation to his placement into ambulatory restraints. (Doc. 14?
l, p. 27). At 4:00 pm, EMT George conducted a clinical encounter with Plaintiff.
(Doc. 1, p. 27). At 8:00 pm, EMT Potter performed a clinical encounter. (Id, at
p. 24). At 12:01 am. on March 29, 2013, EMT Potter performed another clinical
encounter. at p. 21). At 8:00 am, Plaintiff was released from the ambulatory
restraints. (Doc. 14?1, p. 30).

On March 28, 2013, a Report of Incident was completed by ?Acting
Warden, D. Wilson.? at pp. 19-23). Plaintiff was charged with Violating Code
203 for threatening another with bodily harm and Code 307 for refusing an order
when he failed to voluntarily take a cellrnate or submit to restraints to allow a
cellrnate to enter his cell.2 (Doc. 14, p. (Doc. 20, p. 5). On April 22, 2013,
Plaintiff appeared before the Disciplinary Hearing Officer. (Doc. 14, p. (Doc.
20, p. 5). The Disciplinary Hearing Officer found Plaintiff guilty of threatening

another with bodily harm. (Doc. 14, p. (Doc. 14-1, pp. 6, 36); (Doc. 20, p. 6).

 

2 28 CPR. 541.3 contains a listing of the various prohibited acts within
the Bureau of Prisons system.

ll

 

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Plaintiff?s sanctions included disallowance of twenty-seven (27) days good
conduct time. (Doc. 14, p. (Doc. 14-1, pp. 6, 36); (Doc. 20, p. 6). This
disciplinary action has not been overturned. 

On May 29, 2013, F. Alama, had a sick call/triage encounter with Plaintiff.
(Doc. 21, p. 4). Plaintiff presented with complaints of pain in both wrists ?due to
previous ambulatory restraints.? He also complained of an aching pain in
his right wrist that reached level four (4) of ten (10). Alama noted that
Plaintiff had an anxious affect, and appeared ?well, NAD, M, alert and
oriented but also appeared in pain. (Q). Alama found that Plaintiff? 
?wrist/handf?ngers? had full range of motion in his wrists and were symmetric.
(Id at p. 5). Alama also noted that they were tender. Alama did not observe
swelling, erythema or decreased range of active motion in Plaintiff? ?wrist/hand/
?ngers.? Plaintiff exhibited wrist ?exion, extension and pronation, as well
as thumb extension. Alama assessed Plaintiff as having a wrist ?sprain and
strain? that was ?Temporary/Acute.? Alama ordered that Plaintiff be
prescribed Meloxicam Tablets, that he could take two (2) times a day for ?30
1 tablet by mouth daily 30.? (Q). Plaintiff was instructed to
follow up at sick call as needed and to return to sick call if his condition did not

improve. (Id. Alama also noted that Plaintiff was counseled as to his access to

12

 

Case Document 23 Filed 09/12/16 Page 13 of 31

care, to which Plaintiff verbalized his understanding. (Doc. 21, p. 5).

On July 9, 2013, Alama performed an ?Admin Note encounter? with
Plaintiff. at p. 6). Plaintiff requested a re?ll of his ?Meloxicam? prescription.
Alama ordered that Plaintiff receive a re?ll of his Meloxic?am ?7.5 MG Ta 
and that he take ?one tablet by mouth each day 30 

While the Court was able to ?nd some undisputed facts, the summary
judgment record also contains the following factual disputes: 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.

First, in regards to whether Plaintiff became disruptive in his cell on March
28, 2013, Defendant asserts that approximately 12:15 pm. on March 28,
2013, [Plaintiff] became disruptive on Block stating he would violently assault
any inmate who was placed into the cell or any staff member who entered the
cell.? (Doc. 14, p. 3). Plaintiff claims that at 12:15 pm, on March 28, 2013, he
did not become disruptive in his cell nor did he state that he would ?violently
assault any inmate who was placed into the cell or any staff member who entered

the cell.? (Doc. 20, p. 3).

13

 

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Second, as to whether Plaintiff was medically assessed without injuries and
escorted to a new cell, Defendant asserts that Plaintiff ?was removed from the cell
and escorted to the landing area where he was visually searched, metal detected,
placed in new clothes and ambulatory restraints were applied.? (Doc. 14, pp. 
Defendant continues by stating that Plaintiff ?was medically assessed?with no
injuries?and escorted to a new cell.? (1d; at p. 4). Plaintiff disputes the assertion
that the was ?medically assessed?without injuries?and escorted to a new cell.?
(Doc. 20, p. 4).

Third, there is a dispute as to whether the ambulatory restraints placed on
Plaintiff were excessively tight and caused him injuries. First, Plaintiff?s medical
records discussed above indicate that Plaintiff? restraints were not excessively
tight, but could move freely. (Doc. 1, pp. 21-31, 33). However, Plaintiff contends
that his ambulatory restraints were applied ?extremely tight to the point where [he]
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 in severe pain and [he] was having trouble breathing.? (Doc. 19, p. 
see (Doc. 20, pp. 5?8, 10-12). Plaintiff claims that once he was placed into the
temporary cell, he continued to experience trouble breathing and pain from the

restraints. (Li at pp. 5, 8, 10, 11); ?g (Doc. 20, pp. 5-8, 10?12). Additionally,

l4

 

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Plaintiff declares that he continues to suffer a number of injuries that he claims
were caused by the excessively tight restraints. (Doc. 19, p. 12); (Doc. 20, pp.
1 1-12).
IV. DISCUSSION

?The FTCA provides a limited waiver of immunity for actions in tort against
the United States for the actions or negligence of employees of the government.?

Priovolos v. F.B.I., 2015 US. App. LEXIS 19504, at *4 (3d Cir. 2015) (citing 28

 

U.S.C. 2674, 2675(a)). ?Under the FTCA, sovereign immunity is waived
against persons suing the federal government for the commission of various torts.?
Ruiz v. United States, 2016 US. Dist. LEXIS 37961, at *5 (MD. Pa. Mar. 23,
2016) (Conaboy, J.) (citing Simon v. United States, 341 F.3d 193, 200 (3d Cir.
2003)). ?Specifically, the FTCA gives district courts jurisdiction over civil actions
against the United States for ?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 of?ce or employment,? if a private person would be liable to the

claimant for the same.? Tsosie v. United States, 2015 US. Dist. LEXIS 145283,

 

at *10 (MD. Pa. 2015) (Caputo, J.) (quoting 28 U.S.C. 1346(b)(1)). ?The
Supreme Court of the United States has interpreted that statute to mean that ?the

United States waives sovereign immunity ?under circumstances? where local law

15

 

Case Document 23 Filed 09/12/16 Page 16 of 31

would make a ?private person? liable in tort.? Tsosie, 2015 U.S. Dist. LEXIS

145283, at *1 (quoting United States v. Olson, 546 U.S. 43, 44 (2005)). Here,

 

Plaintiff?s claim arose in and thus, substantive law
applies.? Li. (citing Toole v. United States, 588 F.2d 403, 406 (3d Cir. 1978)).

?In to prevail in a negligence action, a plaintiff must
demonstrate the following elements: (1) the defendant owed a duty to the plaintiff;
(2) the defendant breached that duty; (3) a causal relationship between the breach
and the resulting injury suffered by the plaintiff; and (4) actual loss suffered by the
plaintif Id, at *11 (citing Merlini ex rel. Merlini v. Gallitzin Water Auth., 602
Pa. 346, 354 (Pa. 2009)). ?However, in cases such as this which involve federal
prisoners, it has been recognized that the government?s duty of care is one of
ordinary diligence.? 3113;, 2016 U.S. Dist. LEXIS 37961, at *6 (citing 18 U.S.C. 
4042; Turner v. Miller, 679 F. Supp. 411, 443 (MD. Pa. 1987)). ?The applicable
law with respect to the burden and quantum of proof under the FTCA remains that
of the state in which the alleged tortious conduct occurred.? Li. (citing Hossic v.
United States, 682 F. Supp. 23, 25 (MD. Pa. 1987)). ?Under law, a
plaintiff is required to show that the defendant?s negligence was the proximate
cause of his injury by a preponderance of the evidence.? 151, (citing 

United States, 541 F. Supp. 1349, 1351 (MD. Pa. 1982)).

16

 

Case Document 23 Filed 09(12/16 Page 17 of 31

In addition to his claims of negligence, Plaintiff also advances claims of
assault and battery. (Doc. 1, pp. 2, 6-9, 12). ?As the Superior court
explained in Cohen v. Lit Bros., 166 Pa. Super. 206, 70 A.2d 419, 421 (Pa. Super.
Ct. 1950), ?assault is an intentional attempt by force to do an injury to the person
of another, and a battery is committed whenever the violence menaced in an
assault is actually done, though in ever so small a degree, upon the person.?
Banks v. Harrison, 2015 US. Dist. LEXIS 111465, at *19 (MD. Pa. 2015)
(Mannion, J.) (quoting Cohen, 166 Pa. Super. at 209); Renk v. City of
Pittsburgh, 537 Pa. 68, 76 (1994) (citing CM, 166 Pa. Super. at 209); a_1?_g

Zimmerman v. Schaeffer, 654 F. Supp. 2d 226, 255 (M.D. Pa. 2009) (Rambo, J.)

 

(?Under law, an assault occurs when one acts with the intent to place
another in reasonable and immediate apprehension of harmful or offensive
contact, and that act does cause such apprehension. A battery is an intentional
offensive bodily contact?) (internal citations omitted). Additionally, the
Superior Court has stated that ?[t]hreatening words alone are
insuf?cient to put a person in reasonable apprehension of physical injury or
offensive touching; rather the actor must be in a position to carry out the threat
immediately and must take some af?rmative action to do so.? Paves v. Corson,

765 A.2d 1128, 1138 (Pa. Super. Ct. 2000) (citing Gen. Mach. Corp. v. Feldman,

l7

 

Case Document 23 Filed 09/12/16 Page 18 of 31

507 A.2d 831, 833~34 (Pa. Super. Ct. 1986)), rev?d in part on other grounds, 569
Pa. 171 (2002)); s_e_e Patel v. Patel, 2015 US. Dist. LEXIS 149571, at *7 (ED. Pa.
2015) (?Words alone, no matter how threatening, do not constitute an assault . . .
Brillhart v. Sharp, 2008 US. Dist. LEXIS 55624, at *19 (MD. Pa. 2008)

(Jones, J.) (citing Cucinotti v. Ortmann, 399 Pa. 26 (Pa. 1960); Paves, 765 A.2d at

 

1138; Sides, 648 A.2d at 796).
Assault and battery are intentional torts in See Cooper ex rel.

Cooper v. Lankenau Hosp., 616 Pa. 550, 563 (2012) (citing Valles V. Albert

 

Einstein Med. Ctr., 569 Pa. 542 (2002)); Am. Nat?l Prop. Casualty Cos., 93

 

A.3d 880, 886-87 (Pa. Super. Ct. 2014). ?The FTCA waives the United States?
sovereign immunity for certain intentional torts committed by law enforcement

officers.? Millbrook v. US, 133 S. Ct. 1441, 1444 (2013). The relevant portion

 

of the Act, 28 U.S.C. 2680(h), which is known as the ?intentional torts
exception,? states:

The provisions of this chapter and section 1346(b) of this title
shall not apply to?. . . .

Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse
of process, libel, slander, misrepresentation, deceit, or
interference with contract rights: Provided, That, with
regard to acts or omissions of investigative or law
enforcement of?cers of the United States Government,

18

 

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the provisions of this chapter and section 1346(b) of this
title shall apply to any claim arising . . . out of assault,
battery, false imprisonment, false arrest, abuse of
process, or malicious prosecution.
28 U.S.C. 2680(h). The Supreme Court of the United States held that ?the
waiver effected by the law enforcement proviso extends to acts or omissions of
law enforcement of?cers that arise within the scope of their employment,
regardless of whether the of?cers are engaged in investigative or law enforcement
activity, or are executing a search, seizing evidence, or making an arrest.?
Millbrook, 133 S. Ct. at 1446.
A. Miller v. United States
Defendant argues that Miller v. United States, 2014 US. Dist. LEXIS
157059 (MD. Pa. 2014) (Mannion, .1), supports the entry of judgment in
Defendant?s favor as to all of Plaintiff?s claims because ?any claim . . . raising
challenges to the imposition of sanctions or the procedures used in
reaching those conclusions must be dismissed for [Plaintiff? s] failure to first
successfully challenge the procedures employed and the ultimate decision by way
of a habeas petition . . . (Doc. 15, pp. 5-8). As discussed in more detail below,

Miller does not lend support to this position.

In Miller, the district court initially addressed the plaintiff?s FTCA claim

19

 

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and found that it did not have jurisdiction to hear that claim because it was
unexhausted. M_i11_er, 2014 U.S. Dist. LEXIS 157059, at *14-15. In particular, the
district court found that it lacked jurisdiction because the plaintiff?s ?completion
of the administrative remedy process set forth at 28 C.F.R. 542, e_t 
[did] not satisfy the exhaustion requirements of the at *14.

The district court then addressed the claims based on the plaintiff?s
disciplinary proceedings. Id; at *15. The court noted that ?[t]he sanctions levied
against [the plaintiff] were all imposed as a result of prison misconduct.? Lg, ?As
such,? the court determined, ?any claim for monetary damages regarding [the

plaintiff?s] disciplinary hearing is barred under Heck v. Humphrey, 512 U.S. 477,

 

114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) and Edwards v. Balisock, 520 U.S. 641,

 

117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997).? E, The court went on to state that
prisoner cannot bring an action for monetary damages against prison of?cials
relating to procedural errors in a disciplinary proceeding when a judgmentin favor
of the inmate would necessarily imply the invalidity of the disciplinary hearing,
unless the inmate can demonstrate that the disciplinary ?nding has previously
been invalidated.? I_d. Finding no evidence that the plaintiff? disciplinary
sanctions had ?ever been called into question, or overturned,? the district court

determined that the defendant was entitled to summary judgment because the

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Case Document 23 Filed 09112116 Page 21 of 31

plaintiff?s claims based on the disciplinary proceedings were ?barred by 33915 and
Edwards.? Miller, 2014 U.S. Dist. LEXIS 157059, at 15.

Defendant contends that the second determination in Milli provides
support for the entry of judgment in favor of Defendant as to all of Plaintiff?s
claims. (Doc. 15, pp. However, this determination in ?ler, at most,
supports a ?nding that to the extent a plaintiff is seeking monetary redress in the
form of a claim regarding a disciplinary proceeding that has not been overturned
or invalidated, judgment will be entered in favor of the defendant. Mill?er, 2014

U.S. Dist. LEXIS 157059, at *14?15; Butcher v. United States, 2007 U.S. Dist.

 

LEXIS 55002, at *10 (MD. Pa. 2007) (Conner, J.) (dismissing claim seeking
?monetary damages due to the negligent procedure employed? in the plaintiff?s
disciplinary proceeding because ?an adjudication in [the plaintiff?s] favor on the
FTCA would implicate the continued validity of his prison disciplinary conviction
and sanctions and would ?y in the face of this Court?s prior determination
regarding the validity of that conviction?). Therefore, to the extent that Plaintiff
is seeking monetary damages for a due process claim arising out of his disciplinary
proceeding that has not been overturned or invalidated, Defendant is entitled to
judgment.

However, accepting Defendant?s application of Miller, speci?cally that a

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Case Document 23 Filed Page 22 of 31

determination in Plaintiff favor regarding the FTCA claims at issue would
necessarily imply the invalidity of his April 22, 2013 disciplinary conviction,
would be error. In particular, on March 28, 2013, Plaintiff allegedly refused his
new cell mate and stated that he would ?cut off anyone?s head that comes in? to
his cell. (Doc. 14?1, pp. 22, 25, 30). As a result of these actions, Plaintiff was
charged with failing to follow orders and threatening another with bodily harm.
at pp. 35?36). On April 28, 2013, the Disciplinary Hearing Of?cer 
found Plaintiff was guilty of threatening another with bodily harm. at pp. 36-
37).

While the threat underlying the determination served, at least in part,
as the basis for the application of the ambulatory restraints, it was only after
?confrontational avoidance was utilized with positive results? and Plaintiff
voluntarily left his cell that the alleged excessive force initially was used on
Plaintiff. (Doc. 14, p. (Doc. 15, p. 4). Furthermore, Plaintiff also claims that
after he was removed from his cell, taken to a landing area, and placed into a
holding cell, he again was the victim of negligent and intentional torts. (Doc. 1, p.
12); (Doc. 19, p. 11). Therefore, a finding in Plaintiff?s favor on his FTCA
claims that arose from when he was initially placed into restraints immediately

after he voluntarily exited his cell until the ambulatory restraints were removed the

22

 

Case Document 23 Filed Page 23 of 31

next day would not necessarily call into question Whether Plaintiff made the
underlying threat to harm another person. As such, Defendant is not entitled to
summary judgment on the argument that pursuant to M, a determination in
Plaintiff?s favor regarding his FTCA claims would necessarily imply the invalidity
of his April 22, 2013 disciplinary conviction. Therefore, the Court will address
Plaintiff? remaining claims.

B. Plaintiff?s Remaining Claims

As an alterative to its argument based on and He_cl<, Defendant
contends that Plaintiffs ?claims of assault and battery still fail because ?the
incidental and necessary touchings by correctional of?cers of inmates in the
performance of their duties are not batteries, but are privileged contacts?? (Doc.
15, p. 8 11.2) (quoting Restatement (Second) of Torts 132, Comment (1965);

citing Pircariello v. Fenton, 491 F. Supp. 1026, 1038 (MD. Pa. 1980)). Defendant

 

continues by arguing that ?[t]he placement of restraints on an inmate is privileged
if that conduct was reasonably necessary in the circumstances.? (Q) (citing
Restatement (Second) of Torts 132, Comment According to Defendant,
?[t]he record re?ects that the use of restraints was ?reasonably necessary in the
circumstances? because [Plaintiff] initially refused to follow staff orders and

threatened staff with bodily injury.? (Id. at pp. 8-9 n.2) (citing Doc. 14, p. 4).

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Case Document 23 Filed 09/12/16 Page 24 of 31

Defendant continues by asserting that correctional of?cer is privileged to use
reasonable force necessary to carry out his duties and that amount of force when
applied to a prisoner is not tortious.?? (Doc. 15, p. 9 n2) (quoting 491 F.
Supp. at 1026). ?Reasonableness,? Defendant contends, ?is determined at the time
the inmate is placed in restraints.? (citing Ecru?on, 491 F. Supp. at 1026).
According to Defendant, Plaintiff ?states he submitted to the initial application of
restraints once the use of force team arrived,? and ?attaches medical records
evidencing the restraint checks that further show that he remained in restraints
because he continued to curse and threaten staf (IQ). ?Thus,? Defendant
concludes, ?correctional of?cers did not commit assault and battery upon
[Plaintiff] because placing [him] in restraints and keeping him in them for 19
hours was necessary and reasonable to carry out their duties.? (Q).

In support of its motion, Defendant has supplied the following exhibits: a
declaration of Michael S. Romano; Plaintiff?s inmate discipline history; Form 583
Report of Incident; a March 28, 2013 memorandum from Operations Lieutenant
G. Vargeson; documentary evidence of Plaintiff? March 28, 2013 clinical
encounter; Form 586, After Action Review Report; Incident Report No. 2426028;
and DHO Report for Incident Report No. 2426028. (Doc. 14-1).

In opposition to Defendant?s motion, Plaintiff relies almost entirely on his

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Case Document 23 Filed 09/12/16 Page 25 of 31

sworn declaration to support his version of the events surrounding his placement
into restraints shortly after his cell extraction. gee (Doc. 19, pp. While
Plaintiff? declaration amounts to little more, if any, than a recitation of the
allegations in his complaint, ?e (Doc. 1, pp. (Doc. 18, pp. (Doc. 19, pp.
it is ?an admissible form of evidence used to support factual positions during

summary judgment.? Shelton v. Bledsoe, 522 F. App?x 109, 112 (3d Cir. 2013)

 

(per curiam) (citing FED. R. CIV. P. The United States Court of Appeals for
the Third Circuit has ?consistently said that a 119 inmate, like [Plaintiff], ?is in a
decidedly dif?cult position from which to generate record evidence? and that
af?davits ?are about the best that can be expected? at the summary judgment
stage.? I_d. (quoting Brooks v. Kyler, 204 F.3d 102, 108 11.7 (3d Cir. 2000); citing
Smith v. Mensinger, 293 F.3d 641, 649 n.4 (3d Cir. 2002)). Thus, the Court must
accept the declaration as an admissible form of evidence used to support Plaintiff?s
factual positions.

Generally, a court must take the facts in the light most favorable to the non?
moving party when disposing of a summary judgment motion. However, a
?limited exception? to this general rule exists where the non~movant?s version of
the events may be disregarded to the extent those facts are ?blatantly contradicted?

by the summary judgment record. See Scott v. Harris, 550 US. 372, 380 (2007)

 

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Case Document 23 Filed 09/12/16 Page 26 of 31

(?when opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment?). While video footage has been found to establish this
?limited exception,? not all video footage or mechanical depictions will allow a
court to disregard the non-movant?s version of the events. $53 m, 550 US at
380; but Patterson v. City of Wildwood, 354 F. App?x 695, 697?98 (3d Cir.
2009) (?courts have declined to apply the limited exception set forth in Scitty,
gangs where a videotape or other mechanical depiction does not capture the whole
incident or the entire arrest, or where the videotape or mechanical depiction is
susceptible to multiple reasonable interpretations?); Mills v. City of Harrisburg,
598 F. Supp. 2d 544, 552 n.5 (MD. Pa. 2008) (Conner, J.) (audio recordings at
issue did not qualify for the exception created by ?_c_o_tt because they were
susceptible to ?multiple reasonable perspectives?). Here, the summary judgment
record is currently devoid of the type of evidence that is capable of blatantly
contradicting Plaintiffs version of the events so that no reasonable jury could

believe it.3 Therefore, the facts presented in Plaintiffs sworn declaration are taken

 

3 As discussed in more detail below, while the current summary judgment record does
not contain the type of evidence that would allow for the application of the limited exception
established in Scott, there is an indication that arguably dispositive video evidence may exist, but

26

 

Case Document 23 Filed 09l12/16 Page 27 of 31

as true and every inference will be taken in Plaintiff?s favor.

Initially, the Defendant?s alternative argument in favor of summary
judgment is explicitly directed at Plaintiff?s intentional tort claims. (Doc. 15, pp.
8-9 Therefore, Plaintiff?s negligence claims will proceed at this stage of the
litigation.

As for Plaintiff? assault and battery claims, it is determined that judgment
will be entered in Defendant?s favor to the extent that Plaintiff advances such
claims against non-law enforcement officers EMT Barth and EMT George. Six
(Doc. 1, pp. 7, 12). Intentional tort claims under the FTCA against non-law

enforcement of?cers are barred by '28 U.S.C. 2680(h). McLean v. United States,

 

2016 U.S. Dist. LEXIS 16706, at *6 I16 (M.D. Pa. Feb. 11, 2016) (Rambo, sci
Priovolos, 2015 U.S. App. LEXIS 19504, at *4 (citing 28 U.S.C. 2680(h);
Millbrook, 133 S. Ct. at 1446). Consequently, summary judgment will be entered
in Defendant?s favor as to Plaintiff?s intentional tort claims against EMT Barth
and EMT George.

In regards to the remaining intentional torts advanced by Plaintiff, he claims
that he was the victim of assault and battery shortly after being removed from his

a

cell, (Doc. 1, pp. and then a victim of assault and battery again while he was

 

has not been supplied to the Court for review. (Doc. 14?1 pp. 21, 30).

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Case Document 23 Filed Page 28 of 31

temporarily housed in a holding cell. (Doc. 1, pp. 7?8, 12?13).

?While corrections of?cers have the authority to use necessary force under
appropriate circumstances, the reasonableness of this force in relation to their
employment duties determines whether particular conduct is considered an assault
and battery.? Tejada v. Dale, 2015 US. Dist. LEXIS 132354, at *16 (ED. Pa.
2015) (citing Picariello, 491 F. Supp. at 1038 (determining that ?necessary
touchings by correctional of?cers of inmates in the performance of their duties are
not batteries, but privileged Moreover, while ?the court found in
Picariello that the incidental and necessary touching of inmates by correctional
of?cers in the course of their professional duties did not constitute an assault or
battery, such a ?nding can only be made if the of?cers were in fact acting
appropriately within the course of carrying out their professional duties.?

Saucedo?Gonzalez v. United States, 2007 US. Dist. LEXIS 59750, at *24?25 n.ll

 

(W.D. Va. 2007) (determining that Picariello ?does not support the government?s

contention that diSputed issues of fact regarding excessive force claim may be

resolved at summary judgment?), by, 2007 US. Dist. LEXIS 70196.
Here, Plaintiff declares under penalty of perjury that after he voluntarily

exited his cell he ?was hand cuffed excessively tight around [his] wrist area . . . 

(Doc. 19, p. 4). According to Plaintiff, he was then ?taken by [the] use of force

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Case Document 23 Filed Page 29 of 31

team[, unknown lieutenant, and Lt. Johnson along with medical employee EMT-
Barth to a room [in] front of F-Block 3rd Floor . . . (Doc. 19, p. 5). Plaintiff
declares that while he was in that room he was stripped of his clothes and placed
into ?belly chain, hand and leg restraints? that were ?extremely tight to the point
where [he] could not breath and where [his] hands, legs and feet lost blood
circulation . . . (g at p. 5). According to Plaintiff, he then ?complained to
EMT Barth, Lt. Johnson and Use of Force Team that [he] was in severe pain and
[he] was having trouble breathing.? He states under penalty of perjury that
Barth, Lt. Johnson, and Use of Force Team said ?you will learn to do as you
are told and maybe this will teach you to do as you are told? . . . Plaintiff
also declares that he was ?escorted? to ?G?Block Cell 101 . . . where the window
was completely closed and the room temperature was at least 120 degrees . . . 
Plaintiff states he ?immediately began to sweat and gasp for air from the
poor ventilation and passed out . . . (g at p. 6).

Furthermore, while he was held in ?G~Block Cell 101,? Plaintiff declares
that he was visited by Wilson.? at pp. During that Visit, Plaintiff
states that another inmate was ?forced into the cell with [Plaintiff] and told by Lt.

Knapp and A.W. Wilson that Plaintiff was a ?rat? and to beat [him] up.? at p.

9). He also declares that during the ?evening watch? on March 28, 2013, EMT

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Case Document 23 Filed 09/12/16 Page 30 of 31

Potter and Lt. Dawkins entered ?Cell 101 G-Block.? (Doc. 19, p. 11). According
to Plaintiff, ?Lt. Dawkins began acting like he was going to loosen the restraints
but instead tightened them around [Plaintiff 3] hands and wrists thus in?icting
severe pain. . . 

Viewing the facts and taking all reasonable inferences in favor of the
Plaintiff, it is determined that there are genuine issues of material fact as to
Plaintiff? 3 remaining intentional tort claims. Consequently, Defendant?s motion
for summary judgment as to those claims will be denied.

While Defendant?s motion will be denied in part based on the current
summary judgment record, there is an indication in Defendant?s documentary
evidence that there is arguably dispositive videotape footage of the underlying
incident(s) which has not been submitted to the Court. ?e_e (Doc. 14-1, pp. 21,
30). Therefore, Defendant will be afforded a ?irther opportunity to seek summary
judgment on Plaintiff?s remaining claims Within thirty (30) days of the date of this

Memorandum and accompanying Order. See Hill V. Lappin, 2012 US. Dist.

 

LEXIS 132414, at *14?17 (MD. Pa. 2012) (Conaboy, 1.).

V. CONCLUSION

 

Based on the foregoing, Defendant?s motion for summary judgment, (Doc.

13), will be granted in part and denied in part. Defendant?s motion for summary

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Case Document 23 Filed Page 31 of 31

judgment is granted with respect to any of Plaintiff? 3 claims seeking monetary
damages for a 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. Defendant?s motion for summary judgment is
denied as to Plaintiff?s negligence claims and remaining intentional tort claims.
Additionally, the parties will be afforded thirty (30) days from the date of this
Memorandum and accompanying Order to ?le summary judgment motions as to
any of the remaining claims.

A separate Order will be issued.

Date: September 12, 2016 Is/ William J. Nealon
United States District Judge