Khan v. USA

Filing 47

ORDER ADOPTING REPORT AND RECOMMENDATIONS 43 granting 28 Motion for Summary Judgment filed by USA and DISMISSING CASE with prejudice. Signed by Judge Brian S. Miller on 3/14/11. (kpr)

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Khan v. USA Doc. 47 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION AFTAB AHMED KHAN, Reg. #09260-062 v. CASE NO. 2:09cv00077 BSM DEFENDANT ORDER The proposed findings and recommended disposition submitted by United States Magistrate J. Thomas Ray [Doc. No. 43] have been received, and Aftab Khan has objected. [Doc. No. 45]. After carefully considering these documents and making a de novo review of the record, the recommendation that summary judgment be granted in favor of the United States is adopted but the determination that an in forma pauperis appeal would not be taken in good faith is rejected. Section 522(h) of BOP Policy Statement 5566.06 raises a question as to whether the correctional officer herein was performing a discretionary function once he had notice that the restraints he placed on Khan were applied too tightly. In pertinent part, that section reads, "Restraint devices (e.g., handcuffs) may not be used in any of the following ways: . . . (3) in a manner that causes unnecessary physical pain or extreme discomfort." Although the words "unnecessary" and "extreme" seem to create enough ambiguity that it appears an officer is still performing a discretionary function even if he knows the restraints are applied too tightly, Khan's argument that this regulation specifically prevents a particular course of conduct has merit. Therefore, the recommendation that an in forma pauperis appeal would PLAINTIFF UNITED STATES OF AMERICA not be taken in good faith is rejected. IT IS THEREFORE ORDERED that the United States' motion for summary judgment is GRANTED and this case is dismissed with prejudice. IT IS SO ORDERED this 14th day of March, 2011. UNITED STATES DISTRICT JUDGE

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