Juan Diaz, Jr. v. Director Federal Bureau of Pri, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges. Total Pages: 7. We will affirm the District Court's judgment. In reaching our decision, we have reviewed the evidence Diaz seeks to introduce on appeal. Because that evidence does not alter our conclusion, we treat his motion to "amend an exhibit to his complaint" as a motion to supplement the record, and we deny it.

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Document: 003112782336

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Date Filed: 11/20/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-4676
___________
JUAN DIAZ, JR.,
Appellant
v.
DIRECTOR FEDERAL BUREAU OF PRISONS;
GENERAL COUNSEL OF THE FEDERAL BUREAU OF PRISONS;
REGIONAL DIRECTOR; WARDEN LEWISBURG USP;
ASSISTANT WARDEN LEWISBURG USP; CAPTAIN LEWISBURG USP;
LIEUTENANT LEWISBURG USP; L. POTTER, EMT-P
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-12-cv-02519)
District Court Judge: Honorable John E. Jones, III
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 14, 2017
Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges
(Opinion filed: November 20, 2017)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Juan Diaz, Jr., a prisoner, assaulted a prison guard as the two were walking down
the hall.1 Diaz was tackled and restrained and then moved to a holding cell, where he
spat on the guard he had assaulted. Diaz also spat on another guard. Thereafter, a use of
force team carried Diaz to another area of the prison and placed him face down in fourpoint restraints. Diaz complained that one restraint was too tight, and it was immediately
loosened. Diaz remained in four-point restraints for twenty-four hours. He was then
placed in ambulatory restraints—which are much less restrictive and allow an inmate to
eat, drink, and use the bathroom without staff intervention—for another twenty hours.
The undisputed record evidence shows that, pursuant to Department of Corrections
Policy, Diaz’s restraints were checked every fifteen minutes for the entire time that he
was restrained. He was offered routine opportunities to drink water, eat meals, and use
the restroom. Nevertheless, Diaz remained defiant and combative, cursing staff and
threatening to harm them and again harm the guard he initially assaulted. Once Diaz
regained his composure, he was released from the ambulatory restraints.
Diaz filed suit under 42 U.S.C. § 1983.2 Diaz claimed that Defendant Whitaker,
who supervised the use of force team and oversaw Diaz’s placement in the four-point
restraints, maliciously and wantonly inflicted unnecessary pain when he ordered Diaz
placed in the restraints. He claimed that, during the hours he was restrained, Defendant

According to Diaz, he was upset that the guard had “lied on him” during a disciplinary
proceeding earlier that day. Although Diaz’s opening brief seeks to downplay his
aggressive behavior, he told prison staff shortly after the attack that he “went crazy on
[the guard]” for lying in the proceeding.
2
Although his second amended complaint named numerous prison officials, Diaz
voluntarily dismissed all but four Defendants from the case.
1

2

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Whitaker ignored his continuous complaints that the restraints were too tight, which
caused a “new medical issue.” In addition, Diaz claimed that Defendant Whitaker and
Defendant Potter, the attending emergency medical technician, were deliberately
indifferent to his needs for life’s necessities—including food, water, and use of the
restroom—and to his serious medical needs—i.e. the injuries caused by the overtight
restraints.
The Defendants filed a motion for summary judgment, supported with declarations
from Defendants Whitaker and Potter, the medical records kept while Diaz was
restrained, and the logs kept by the guards and medical staff documenting the fifteen
minute checks and Diaz’s combative behavior—evidence that clearly rebutted Diaz’s
claims that the Defendants acted maliciously and were deliberately indifferent to his
needs. Diaz filed arguments opposing the motion, but he offered no evidence
whatsoever—in the form of an affidavit or a declaration, for example—to support the
allegations in his complaint.3 The District Court granted the Defendants’ motion for
summary judgment. Diaz timely appealed.
We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review of the
District Court’s order granting summary judgment. See Caprio v. Bell Atl. Sickness &
Accident Plan, 374 F.3d 217, 220 (3d Cir. 2004). We will affirm.4

3

Diaz did claim that video evidence, which the Defendants submitted to the District
Court, supported his claims. However, we have reviewed that evidence. It does not
support Diaz’s allegations.
4
To the extent that Diaz has raised new claims—that the Defendants violated his rights
under the Fourth Amendment and prison regulations regarding the material from which
the restraints were constructed—he asserted them for the first time on appeal; hence, we
3

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The District Court correctly granted summary judgment on Diaz’s cruel and
unusual punishment claim. “[T]he unnecessary and wanton infliction of pain . . .
constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley
v. Albers, 475 U.S. 312, 319 (1986) (alteration in original, quotation marks omitted).
Whether this standard has been met “ultimately turns on whether force was applied in a
good faith effort to maintain or restore discipline or maliciously and sadistically for the
very purpose of causing harm.” Id. at 320-21 (quotation marks omitted); see also Wilkins
v. Gaddy, 559 U.S. 34, 37 (2010); Giles v. Kearney, 571 F.3d 318, 328 (3d Cir. 2009). In
the context of restraints, like the four-point and ambulatory restraints used to confine
Diaz, “the Supreme Court in Hope [v. Pelzer, 536 U.S. 730, 738 (2002)] identified
particular criteria relevant to the use of excessive force test.” Young v. Martin, 801 F.3d
172, 180 (3d Cir. 2015). Hope held that (1) where the inmate had “already been subdued,
handcuffed, [and] placed in leg irons,” and (2) there was a “clear lack of an emergency
situation” such that “[a]ny safety concerns had long since abated,” then (3) subjecting the
inmate to “substantial risk of physical harm” and “unnecessary pain” serves no
penological justification. 536 U.S. at 738.
The record contains no evidence that Defendants acted maliciously or sadistically
in administering Diaz’s four-point restraints. The record evidence on this point makes
clear that Diaz was behaving violently and was placed in restraints—for his protection
and the protection of the staff—after he rammed his shoulder into one guard, and then
decline to address those claims here. Harris v. City of Phila., 35 F.3d 840, 845 (3d Cir.
1994) (“This court has consistently held that it will not consider issues that are raised for
the first time on appeal.”).
4

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spat in his face, and then spat in the face of another, all in spite of the guards’ attempts to
calm him. Cf. Young, 801 F.3d at 181 (“[Young] was not violent, combative, or selfdestructive at any point leading up to his prolonged confinement in the restraint chair.”).
Unlike Hope, where the prisoner had been subdued and shackled and later transported
from a worksite back to the prison before he was handcuffed to a “hitching post,” this
was not a case where “[a]ny safety concerns had long since abated.” Hope, 536 U.S. at
738.
The record evidence is also clear that prison officials required Diaz to stay in fourpoint restraints for twenty-four hours because he remained combative, defiant, and
uncooperative with staff. During this period, staff checked on Diaz every fifteen minutes,
and at nearly every interval he defiantly cursed at them, and on several occasions
threatened them, saying “I will kill you,” “you will see what I can do,” and “you just
wait.” He also threatened to harm the guard he had initially assaulted, warning staff to
tell “that [guard] just wait.” The evidence further shows that even after staff moved Diaz
from four-point restraints to much-less-restrictive ambulatory restraints, he remained
combative for another twenty hours; however, once Diaz became less combative and
regained his composure the ambulatory restraints were removed. Accordingly, no
reasonable factfinder could conclude the Defendants acted maliciously or sadistically or
for the purpose of causing harm, as Diaz claimed.
Similarly, the District Court properly granted summary judgment to Defendants
Whitaker and Potter on Diaz’s deliberate indifference claims. Diaz’s complaint can be
read as asserting that Defendants Whitaker and Potter were deliberately indifferent in
5

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denying him the minimal civilized measure of life’s necessities—like food, water, and the
ability to use the restroom—for the twenty-four hours he spent in the four-point
restraints. See Parkell v. Danberg, 833 F.3d 313, 335 (3d Cir. 2016). Diaz’s complaint
can also be read as claiming that the Defendants were deliberately indifferent to his
serious medical needs—i.e. the injuries he claims were caused by the restraints. See id.
at 337.
“A prison official is deliberately indifferent if the official ‘knows that [the]
inmate[] face[s] a substantial risk of serious harm and disregards that risk by failing to
take reasonable measures to abate it.’” Id. at 335 (quoting Chavariagga v. N. J. Dep’t of
Corrs., 806 F.3d 210, 229 (3d Cir. 2015)). Here, however, there is no evidence in the
summary judgment record that the Defendants were deliberately indifferent. Defendant
Whitaker provided evidence that prison officials checked on Diaz every fifteen minutes;
he was offered water every two hours and opportunities to eat a bagged lunch at every
meal time; he was also offered the opportunity to use the restroom every two hours; and
that Diaz did not complain that his restraints were too tight, and any such complaint
would have been referred to medical professionals. Likewise, Defendant Potter
submitted evidence that Diaz rejected multiple offers to use the restroom or to drink
water. The Defendants’ evidence matches the prison’s records, which reflect that
medical staff encouraged Diaz to drink water, offered him opportunities to use the
bathroom, and routinely checked Diaz’s restraints, but that on several occasions Diaz
refused any restraint checks. While Diaz has made various allegations about the
Defendants’ purported misconduct, he has not produced any evidence to survive
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summary judgment. See Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.
2006) (“In this respect, summary judgment is essentially ‘put up or shut up’ time for the
non-moving party: the non-moving party must rebut the motion with facts in the record
and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral
argument.”). This record would not permit a reasonable factfinder to conclude that either
Defendant was deliberately indifferent to Diaz’s needs.
For these reasons, we will affirm the District Court’s judgment.5 In reaching our
decision, we have reviewed the evidence Diaz seeks to introduce on appeal. Because that
evidence does not alter our conclusion, we treat his motion to “amend an exhibit to his
complaint” as a motion to supplement the record, and we deny it.6

Diaz does not challenge on appeal the District Court’s ruling on his First Amendment
claim, and this we will not address it here. See Emerson v. Thiel Coll., 296 F.3d 184,
190 n.5 (3d Cir. 2002).
6
We also deny Diaz’s request to strike Appellees’ brief.
5

7