Thomasson v. Koehn et al
MEMORANDUM re 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and/or for Summary Judgment filed by A Farley, W. Sevison, J. Schwartz, J. Koehn, B. Alvero, C. Michko, R. Burns Signed by Honorable A. Richard Caputo on 3/27/13. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS GUY THOMASSON,
J. KOEHN, et al.,
CIVIL NO. 3:CV-11-2392
On December 29, 2011, Plaintiff, Thomas Guy Thomasson, an inmate
confined at the United States Penitentiary Canaan (USP Canaan), Waymart,
Pennsylvania, filed this Bivens action1 claiming that he was placed in the Special
Housing Unit (SHU) in retaliation of his First Amendment rights, subjected to
excessive force, the object of racial slurs, and denied medical attention by the
Defendants.2 (Doc. 1, Compl.) Presently before the Court is Defendants James
In Bivens, the Supreme Court held that a plaintiff may obtain damages for injuries
caused by a federal agent acting “under color of his authority” in violation of a claimant’s
constitutionally protected rights. Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388, 395, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971).
Bivens actions are the federal counterpart to § 1983 claims brought against state officials.
Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012).
For the convenience of the reader of this document in electronic format, hyperlinks
to authority cited have been inserted. No endorsement of any provider of electronic
resources is intended by the Court's practice of using hyperlinks.
Koehn, Allen Farley, William Sevison, Carl Michko, J. Schwartz, R. Burns, and B.
Alvaro’s Motion to Dismiss and/or Summary Judgment. (Doc. 27, Mot. to Dismiss.)
The Defendants assert that all of Mr. Thomasson’s claims, except for his excessive
use of force claim against Allan Farley, are subject to dismissal due to his failure to
exhaust his available administrative remedies. With respect to the use of force
claim against Allen Farley, Defendants contend given the totality of the situation the
actions of Allan Farley do not rise to the level of a constitutional violation. Even
though Mr. Thomasson was granted an enlargement of time to file a brief in
opposition to Defendants’ motion, he failed to do so or request additional time to
For the reasons set forth below, the Defendants’ unopposed motion will be
Standard of Review
Summary judgment shall be granted “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). “Summary judgment is appropriate when ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.’ ” Wright v.
Corning, 679 F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71
F.3d 480, 482 (3d Cir. 1995)). A fact is material if proof of its existence or
nonexistence might affect the outcome of the suit under the applicable substantive
law. Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412 (3d Cir.
2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 2510, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986)).
At summary judgment the moving party must show that if the evidentiary
material of record were reduced to admissible evidence in court, it would be
insufficient to permit the non-moving party to carry its burden of proof. See Celotex
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once
the moving party has carried its burden under Rule 56, “its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts.”
Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007).
Under Fed. R. Civ. P. 56(e), the opposing party must set forth specific facts showing
a genuine issue for trial and may not rest upon the mere allegations or denials of its
pleadings. See Martin v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007). Ultimately,
“[w]here the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986) (internal quotation marks omitted); NAACP v. North Hudson
Reg’l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
Along with their motion of summary judgment and brief, Defendants filed a
Statement of Material Facts and supporting evidentiary materials. (Doc. 33).
Because Mr. Thomasson failed to file a Statement of Material Facts in response to
Defendants’ submission, the facts as set forth in Defendants’ statement will be
deemed admitted pursuant to M.D. Pa. Local Rule 56.1. See Smith v. Addy, 343 F.
App’x 806, 808 (3d Cir. 2009) (District Court entitled to deem Defendants’ statement
of facts as admitted due to Plaintiff’s failure to file a counter-statement of material
facts). The undisputed facts are as follows.
December 28, 2010 SHU Incident
Thomas Guy Thomasson was committed to the Bureau of Prisons (BOP) on
October 29, 2010, for a probation violation. (Doc. 33, Defs.’ Statement of Material
Facts, ¶ 1.) On December 6, 2010, he was designated to USP Canaan. (Id. ¶ 3.)
On December 23, 2010, he was assigned to USP Canaan’s Special Housing Unit
(SHU) and placed in Administrative Detention pending an initial classification and a
Captain’s review. (Id. ¶ 13). At all times relevant to this action, Allan Farley was
employed in the capacity of an Acting Unit Manager at USP Canaan. (Id. ¶ 4.)
On December 28, 2010, at approximately 9:50 a.m., Unit Manager Allen
Farley and Case Manager Jamey Koehn met with Mr. Thomasson in the Disciplinary
Hearing Officer’s (DHO) Office of the SHU to conduct his initial classification. (Id. ¶
14.) During the course of the meeting, upon learning of the points assessed toward
his case, Mr. Thomasson became increasingly agitated and verbally abusive,
suddenly jumped up from his chair, and attempted to leave the room unescorted.3
(Id. ¶ 15, ¶ 24, ¶ 32 and ¶¶ 64-65.) He was given a direct order by Case Manager
Koehn to sit down. (Id. ¶ 32.) When Mr. Thomasson continued toward the door in
an attempt to leave the DHO’s office, Unit Manager Farley placed his hands on Mr.
Thomasson’s right shoulder to attempt to stop him from leaving. (Id. ¶ 16, ¶ 32 and
¶ 65.) Mr. Thomasson immediately turned and lunged at Defendant Farley in an
aggressive manner. (Id. ¶ 17 and ¶ 32.) Defendant Farley then placed Mr.
Thomasson on the floor to gain control of him while another staff member called for
assistance. (Id. ¶¶ 18-19 and ¶ 32.)
The Defendants Alvaro, Burns, Schwartz and Sevison responded to the call
and assisted placing Mr. Thomasson in leg restraints, after which, he was escorted
to a holding cell without further incident. (Id. ¶ 20, ¶¶ 33-34 and ¶¶ 36-37.) At
approximately 10:59 a.m., Mr. Thomasson was seen by Defendant Michko, a
paramedic, for an injury assessment. (Id. ¶¶ 71-80.) Defendant Michko assessed
Mr. Thomasson’s complaints of right ankle pain, right head pain, right chest pain,
and right wrist pain. (Id. ¶¶ 72-74.) According to Defendant Michko, Mr.
Thomasson had the following injuries: an abrasion in the right temporal area; a
hematoma with tenderness and swelling to the right occiput with no deformity or
depression; tenderness to palpation on the right chest with no crepitus of
paradoxical movement and clear lungs with equal expansion; an abrasion to the
dorsal aspect of his left wrist; and swelling and tenderness of the right ankle with no
SHU inmates are not permitted to move within the SHU without a staff
escort. (Id. ¶ 8.)
crepitus or deformity. (Id. ¶ 75.) Defendant Michka ordered x-rays of Mr.
Thomasson’s right ankle. (Id. ¶ 77.) He also cleansed the wound to Mr.
Thomasson’s right temporal area with hydrogen peroxide and applied a large BandAid. (Id. ¶ 78.) Mr. Thomasson was counseled regarding his access to care.4 (Id.
Disciplinary Proceedings Related to December 28, 2010 SHU
On December 28, 2010, Defendant Farley issued Mr. Thomasson Incident
Report No. 2105781 for “assaulting any person (minor assault attempted)”. (Id. ¶
25.) A DHO hearing concerning Incident Report No. 2105781 was conducted on
January 6, 2011. (Id. ¶ 26.) On January 6, 2011, the DHO found Mr. Thomasson
guilty of Attempted Assault of Any Person, a Code 224A violation:
based on the greater weight to the evidence, that on
December 28, 2010, at 9:50 a.m., during initial
classification in the Special Housing Unit (SHU),
THOMASSON jumped from his chair and attempted to
leave the room unescorted, the reporting staff member
placed his hands on his right shoulder in an attempt to
prevent him from leaving unescorted, at which time he
turned and lunged at him in an aggressive manner.
(Id. ¶ 38.) A copy of the DHO’s January 31, 2011, report was provided to Mr.
Thomasson the same day. (Id. ¶ 43.) Mr. Thomasson did not appeal the DHO’s
findings. (Id. ¶ 44.)
Although Defendants provide additional facts related to the BOP’s continued care
and treatment of Mr. Thomasson’s ankle injury, the Court will not recite those facts here as
they are immaterial to our resolution of Mr. Thomasson’s Eighth Amendment medical claim,
infra, which will be dismissed due to his failure to exhaust his administrative remedies as to
Exhaustion of Administrative Remedies
Federal inmates may challenge any aspect of their confinement by
using the BOP's Administrative Remedy procedure. (Id. ¶ 46, citing 28 C.F.R. §
542.10(a)). The first tier of the administrative remedy program is to present the
issue to the staff for an informal resolution attempt. (Id. ¶ 47, citing See 28 C.F.R. §
542.13). If that does not resolve the issue, the inmate must submit a formal request
for administrative relief to the Warden. (Id. ¶ 48, citing 28 C.F.R. § 542.14). An
inmate who is not satisfied with the Warden's response may submit an appeal to the
appropriate Regional Director. (Id. ¶ 49, citing 28 C.F.R. § 542.15). DHO appeals
shall be submitted initially to the Regional Director for the region where the inmate is
currently located. (Id. ¶ 50, citing 28 C.F.R. §542.14(c)(2)). The final step in the
administrative remedy process is an appeal to the General Counsel (Id. ¶ 51, citing
28 C.F.R. § 542.15). No administrative appeal is considered fully exhausted until it
has been considered by the General Counsel’s Office. (Id. ¶ 52, citing 28 C.F.R. §
Mr. Thomasson filed only four administrative remedies throughout his BOP
incarceration. (Id. ¶ 54.) All four administrative remedies pertain exclusively to his
claim that Defendant Farley used excessive force against him on December 28,
2010. (Id. ¶¶ 54-60.) Mr. Thomasson filed Administrative Remedy 623337-F1 at
USP Canaan on January 20, 2011, which was rejected and returned to him the
following day. (Id. ¶ 55.) Mr. Thomasson resubmitted the Administrative Remedy
623337-F2 on January 28, 2011, which stated:
I am submitting this BP-9 as an appeal of the Informal
Resolution process, for there is no resolution that can be
reached, informally, that can bring closure to this matter.
I had been assaulted by UNIT MANAGER FARLEY, while
already restrained in hand-cuffs, that resulted in injuries,
including a broken right ankle. Thus, I wish to be
compensated for the injuries and pain I suffered. Conflict
of interest. Adversely affected, for this complaint against a
member of my unit team.
(Id. ¶ 56.) Warden Holt (non-defendant) responded to the Administrative Remedy,
advising Mr. Thomasson that his allegations are taken seriously and would be
investigated but, due to privacy rights of staff members, the results of the
investigation would not be revealed to him. (Id. ¶ 57.) On February 16, 2011, Mr.
Thomasson filed Administrative Remedy 62337-R1 at the BOP’s Northeastern
Regional Office challenging the Warden’s response. (Id. ¶ 58.) The Regional
Director responded to the appeal on March 17, 2011, informing Mr. Thomasson that
a thorough investigation would be conducted into his assault allegations, that he
received adequate medical care following the incident, and that any relief he seeks
with regard to his injury would be addressed within the context of the federal tort
claim he filed with the Regional Counsel’s office on February 16, 2011.5 (Id. at ¶ 59;
Doc. 33-2, Exs. in Supp. Defs.’ Mot. to Dismiss, ECF p. 15.) Mr. Thomasson filed a
Central Office Administrative Remedy Appeal on April 11, 2011, again alleging he
incurred a broken right ankle after he was assaulted by Unit Manager Farley in the
SHU. (Doc. 33, DSMF ¶ 60.) The BOP’s Administrator for National Appeals denied
his appeal. (Id. ¶ 61.)
Mr. Thomasson’s present action does not include a Federal Tort Claim Act claim.
Investigation into Allegations of Unit Manager Farley’s
Misconduct on December 28, 20106
USP Canaan’s Warden requested the BOP’s Special Investigations
Department investigate Mr. Thomasson’s allegations that Unit Manager Farley
assaulted him on December 28, 2010. (Id. ¶ 62.) The internal investigation
revealed insufficient evidence that Defendant Farley physically abused Mr.
Thomasson. (Id. ¶ 63).
In connection with the investigation, Defendant Farley submitted a sworn
affidavit. Defendant Farley states that Mr. Thomasson became agitated during his
classification meeting, jumped from his chair, and attempted to leave the room
unescorted. (Id. ¶¶ 64-65.) He placed his hands on Mr. Thomasson’s right shoulder
after he refused an order to sit down. (Id. ¶ 65.) When he attempted to leave the
room, he placed Mr. Thomasson on the ground to gain control, and that within
seconds, SHU staff responded, applied leg restraints and escorted him from the
Unit Manager Farley denies instructing responding staff members to twist Mr.
Thomasson’s legs or ankles, or to otherwise use inappropriate force against Mr.
Thommasson. (Id. ¶ 21.) Defendant Farley denies provoking Mr. Thomasson to
leave the room unescorted, or to lunge at him. (Id. ¶ 23.) Defendant Farley placed
The Court notes that Defendants’ Index of Exhibits (Doc. 33-1) in support of their
motion for summary judgment identifies Ex.2 Attach. R as a “Use of Force Video referenced
in Forms 583 and 586". Upon a thorough review of the record before the Court, it was
discovered that this exhibit was never submitted to the Court. This oversight, however, is of
no import to our resolution of Defendants’ motion as Defendants do not rely upon the video
in support of any of their unopposed statements of material facts.
his hands on Mr. Thomasson’s right shoulder in a manner that was intended to deter
him from continuing his movement to the SHU range. (Id. ¶ 22.) Defendant Farley
states he did not assault Mr. Thomasson. (Id. ¶ 64.)
The Special Investigations Department’s findings were consistent with
Defendant Farley’s statements. (Id. ¶ 66.) Warden Holt determined that “[t]he
action taken with respect to the use of force and/or restraints were reasonable and
appropriate and have been reviewed with the staff involved.” (Id. ¶ 69.)
Mr. Thomasson’s Failure to Exhaust his Administrative
The Prison Litigation Reform Act (PLRA) requires that an inmate exhaust all
available administrative remedies before he may maintain a suit in federal court:
No action shall be brought with respect to prison conditions
under § 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility under such administrative remedies as are available
42 U.S.C. § 1997(e). This “exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong,” including Bivens suits by
federal prisoners. Porter v. Nussle, 543 U.S. 516, 523, 122 S.Ct. 983, 992, 152
L.Ed.2d 12 (2002). Under the PLRA, a prisoner must properly exhaust all available
administrative remedies prior to filing suit. 42 U.S.C. § 1997e(a); Woodford v. Ngo,
548 U.S. 81, 83-84, 126 S.Ct. 2378, 2382-83, 165 L.Ed.2d 368 (2006). “Proper
exhaustion demands compliance with the agency’s deadlines and other critical
procedural rules.” Woodford, 548 U.S. at 90-91, 126 S.Ct. at 2386; Williams v.
Beard, 482 F.3d 637, 639 (3d Cir. 2007). Failure to substantially comply with
procedural requirements of the applicable prison's grievance system will result in a
procedural default of the claim. Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004).
Further, the PLRA "completely precludes a futility exception to its mandatory
exhaustion requirement." Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). The
Supreme Court has clearly stated that "there is no question that exhaustion is
mandatory under the PLRA and that unexhausted claims cannot be brought in
court." Jones v. Bock, 549 U.S. 199, 212, 127 S.C. 910, 918-19, 166 L.Ed.2d 798
A prisoner is not required to allege that administrative remedies have been
exhausted. Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002). Failure to exhaust available
administrative remedies is an affirmative defense. (Id.) As such, it must be plead
and proven by the Defendants. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).
In their motion, Defendants present the affirmative defense that they are
entitled to judgment as a matter of law with respect to all claims against all
defendants, except Mr. Thomasson’s Eighth Amendment excessive use of force
claim against Unit Manager Farley, due to his failure to exhaust his available
administrative remedies as to these claims. Specifically, Defendants state that Mr.
Thomasson has not exhausted his administrative remedies concerning the following
claims asserted in the Complaint: (1) civil rights conspiracy (Counts I and X);
(2) a challenge to his conditions of confinement (Count II); (3) a claim of unlawful
seizure (Court III); (4) his alleged retaliatory placement in the SHU (Count V); (5) a
due process violation (Count VI); (6) violations of the Equal Protection Clause
(Counts VII and XI); (7) an Eighth Amendment denial of adequate medical care
(Count VIII); (8) fraud and fraudulent concealment (Count X); and (9) medical
malpractice (Count XII). See Doc. 33, ¶ 54; Doc. 1, Compl.
The undisputed facts of the record reveal that Mr. Thomasson filed a total of
four administrative remedies. (Doc. 33, ¶ 54.) The Court’s review of the individual
administrative remedies confirms that the only claim Mr. Thomasson properly
exhausted within the BOP’s administrative remedy program is his Eighth
Amendment excessive use of force claim against Unit Manager Farley. (Id. ¶¶ 5556, ¶ 58, and ¶ 60.) Since Mr. Thomasson failed to comply with the requirement to
exhaust his administrative remedies, he is barred from bringing any claim against
any other Defendant, other than his excessive use of force claim against Unit
Manager Farley. Accordingly, the remaining Defendants are entitled to summary
judgment in their favor as to all claims set forth in the Complaint against them.
Excessive Force Claim Against Unit Manager Farley
Use of excessive force against an inmate violates the inmate’s Eighth
Amendment right to be free from cruel and unusual punishment. Graham v.
Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989).
“In determining whether a correctional officer has used excessive force in violation
of the Eighth Amendment, courts look to several factors, including: (1) ‘the need for
the application of force’; (2) ‘the relationship between the need and the amount of
force that was used’; (3) ‘the extent of injury inflicted’; (4) ‘the extent of the threat to
the safety of staff and inmates, as reasonably perceived by responsible officials on
the basis of the facts known to them’; and (5) ‘any efforts made to temper the
severity of a forceful response.’” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000)
(quoting Whitley v. Albers, 475 U.S. 312, 320–21, 106 S.Ct. 1078, 1085, 89 L.Ed.2d
When considering such claims, the reasonableness of a particular use of
force is dependent upon context and must be “judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396–7, 109 S.Ct. at 1872. The core inquiry on an
excessive-force claim is “whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause harm.” Wilkins v.
Gaddy, 559 U.S. 34,
, 130 S.Ct. 1175, 1178, 175 L.Ed.2d 995 (2010) (per
curiam) (quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 999, 117
L.Ed.2d 156 (1992)). This state-of-mind inquiry will reveal whether the force was
applied wantonly, thus satisfying the subjective component of an Eighth Amendment
claim. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128
L.Ed.2d 811 (1994).
Here, Unit Manager Farley admits to using force against Mr. Thomasson.
However, “[n]ot every push or shove, even if it may later seem unnecessary in the
peace of a judge's chambers, violates a prisoner's constitutional rights.” Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir. 1973). Based on Mr. Thomasson’s level of
agitation, sudden aggressive movements, refusal to obey a direct order to sit down
and his attempts to leave the DHO’s office unescorted, Unit Manager Farley
reasonably perceived him as a threat. The force used by Unit Manager Farley to
maintain order and restore control over Mr. Thomasson was necessary and quickly
established. The initial use of force, and increase in the amount of force, Unit
Manager Farley used against Mr. Thomasson escalated in direct proportion to Mr.
Thomasson’s own unruliness and aggressive behavior towards staff. Only after Mr.
Thomasson refused a direct order to stay seated was minimal force applied by Unit
Manager placing his hands on Plaintiff’s right shoulder. The physical force Unit
Manager Farley mustered to place Mr. Thomasson on the ground and to restrain
him until others arrived was applied as a last resort to restore control over Mr.
Thompson’s continued defiant efforts to ignore staff orders and leave the area
unescorted. SHU inmates are not permitted to leave their cells, at any time, without
staff escort. Unit Manager Farley reasonably perceived Mr. Thomasson’s actions as
a threat to the security of staff and inmates alike. The fact that Mr. Thomasson
broke his ankle and received other injuries as a result of this use of force event does
not elevate the incident to the level of an Eighth Amendment violation. The question
of whether the force was excessive depends on the “extent of the force and the
circumstances in which it is applied; not by the resulting injuries.” Smith v.
Mensinger, 293 F.3d 641, 648 (3d Cir. 2002).
Upon review of the record, based on the foregoing facts, which are
undisputed, and examination of the circumstances of this case under the
appropriate facts, the Court finds that the force Unit Manager Farley used against
Mr. Thomasson was “applied in a good-faith effort to maintain or restore discipline,”
and was not done “maliciously and sadistically to cause harm.” Hudson, 503 U.S. at
7, 112 S.Ct. at 999. There is ample evidence in the record from which a reasonable
jury could conclude the use of force, and the amount of force, used by Unit Manager
Farley was a reasonable and measured response to modify Mr. Thomasson’s
defiant behaviour and to control his movement within the SHU. Accordingly, there is
no constitutional violation and summary judgment will be entered in favor of Unit
Manager Farley on Plaintiff’s excessive use of force claim.
An appropriate Order follows.7
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: March 27, 2013
Because Plaintiff has not exhausted his administrative remedies as to all but the
excessive use of force claim against Unit Manager Farley, there is no need for this court to
address Defendants’ alternative bases for summary judgment as to the unexhausted