Perry v. Agricultural Dept. et al

Filing 68

MEMORANDUM OPINION & ORDER: (1) The Motion to Dismiss, or in the Alternative, Motion for Summary Judgment filed by Defendants Leroy Chaney, Lieutenant at the USP-McCreary, Defendant Donald Weiss, Lieutenant at the USP-McCreary, Defendant John Fowl er, Lieutenant at the USP-McCreary, Defendant David Altizer, Lieutenant at the USP-McCreary, and Defendant Stephanie Sumner, Nurse at the USP McCreary [Record No. 53 ] is GRANTED. (2) This action is DISMISSED, with prejudice, and STRICKEN from the Court's docket. Signed by Judge Danny C. Reeves on 2/29/16.(SYD)cc: COR, mailed to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
OCEANUS PERRY,

)
)
)
)
)
)
)
)
)

Plaintiff,
V.
AGRICULTURAL DEPT., et al.,
Defendants.

Civil Action No. 6: 14-168-DCR

MEMORANDUM OPINION
AND ORDER

***** ***** ***** *****
The matter is pending for consideration of the motion to dismiss or,
alternatively, for summary judgment filed by Defendants Leroy Chaney,
Lieutenant at United States Penitentiary (“USP”)-McCreary, Donald Weiss,
Lieutenant at USP-McCreary, John Fowler, Lieutenant at the USP-McCreary,
David Altizer, Lieutenant at USP-McCreary, and Stephanie Sumner, Nurse at
USP-McCreary. [Record No. 53] For the reasons discussed herein, the Court will
grant the defendants’ motion.
I.
Perry filed this action in July 2014, asserting various claims against fiftyone defendants. [Record No. 1] Perry asserted constitutional claims under 28
U.S.C. § 1331, pursuant to the doctrine announced in Bivens v. Six Unknown
Narcotics Agents, 403 U.S. 388 (1971), and tort claims under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§1346(b), 2671-80. Perry filed other motions
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seeking injunctive relief to prohibit the defendants from retaliating against him.
[Record Nos. 19 and 20]

Among his other claims, Perry alleged that: (i)

Defendants Chaney and Weiss retaliated against him in response to an institutional
complaint against another USP-McCreary official; (ii) on June 27, 2014,
Defendant Altizer assaulted him and applied excessive force; and (iii) Defendants
Fowler and Sumner denied him medical treatment and were deliberately
indifferent to his serious medical needs.
Perry asserts that he filed a complaint on May 1, 2014, with the
Supervisory Investigative Agent (“SIA”) at USP-McCreary about disputes with
Officer A. Rose during the previous month. [Record No. 1, p. 20 ¶¶ 167-171]
Perry alleges that Chaney summoned him to his office to address the complaint,
and told Perry that if he did not drop the complaint against Rose, he would move
Perry to a different housing unit. [Id. ¶¶ 172-173] Perry claims that, when he
refused to drop the complaint, he was placed in a holding cell until later that
evening when Lt. Donald Weiss released him and moved him to a different
housing unit. [Id. ¶ 174]. Perry questioned Weiss about why he was being moved
to a housing unit with inmates who were known to be hostile toward inmates from
Perry’s state. [Id. ¶ 175]. Perry alleges that Weiss responded, “I will let the
inmates handle our problem for us.” [Id. ¶ 176].
Perry claims that, on June 27, 2014, while Altizer was transporting him
from the Special Housing Unit (“SHU”) to an area near medical and the R&D
[Receiving and Discharge] department, Altizer applied excessive force and
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physically assaulted him, placed him in restraints, and took him to the SHU. [Id.
¶¶ 48, 68] Perry alleges that, on June 28, 2014, Fowler and Nurse Sumner
conducted the “first shift restraints checks” and during those checks, he
complained of loss of feeling in his right hand. [Id., ¶¶ 72-74] Sometime after
9:30 a.m., Perry was escorted by Fowler to R&D where he underwent an x-ray
body scanner. [Id. ¶¶ 78-79]. Perry alleges that he again complained to Fowler
that the restraints were hurting his wrists and causing him to lose feeling in his
right hand. [Id. ¶ 80] Perry contends that later that same day (June 28, 2014),
during afternoon pill distribution in the SHU, he showed his wrists to Sumner and
complained of a loss of feeling in his right wrist. However, Nurse Sumner refused
to either treat his writs or provide a medical request form. [Id., ¶ 81]
On April 16, 2015, the Court screened Perry’s federal Complaint,
dismissing all claims except those asserted against Chaney, Perry, Altizer, Fowler,
and Sumner.

Perry’s request for a preliminary injunction also was denied.

[Record No. 23] On May 29, 2015, the Sixth Circuit dismissed as premature
Perry’s interlocutory appeal of the dismissal of most of his Bivens claims, but
allowed his appeal of the denial of the preliminary injunction to proceed. [Record
No. 34] Thereafter, on June 13, 2015, Perry filed an Amended Complaint in
which he broadly reiterated his prior allegations that the USP-McCreary staff
conspired against him, punished him, and discriminated against him for filing a
complaint alleging staff misconduct. [Record No. 37]

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On October 22, 2015, the Sixth Circuit dismissed Perry’s appeal of the
denial of his request for a preliminary injunction. [Record No. 62] In dismissing
Perry’s appeal, the Sixth Circuit concluded that “Perry has failed to establish a
substantial likelihood that he would prevail on the merits of his remaining claims.”
[Id., p. 2]
In July 2015, the five remaining defendants moved the Court to either
dismiss the claims asserted against them or enter summary judgment in their favor.
[Record No. 53]

Each submitted sworn Declarations refuting Perry’s claims

against them. Further, Joshua Billings, Senior Attorney at the Consolidated Legal
Center (“CLC”) at the Federal Medical Center in Lexington, Kentucky, submitted
a Sworn Declaration detailing Perry’s federal sentences as well as his institutional
history.1 [Record No. 53-2] The defendants argue that Perry did not properly
exhaust his claims under the BOP’s administrative remedy process or,
alternatively, that they are entitled to summary judgment because no genuine issue
of material facts exists regarding Perry’s First and Eighth Amendment claims.
Finally, the defendants argue that Perry’s state tort “assault” claim against Altizer
should be dismissed because Perry failed to file an FTCA administrative claim.
On September 28, 2015, Perry filed a “Motion for Docket Entries,”
claiming that when he was transferred from USP-McCreary to USP-Lewisburg, all
1

In his capacity as the Senior CLC Attorney, Billings has access to all BOP records
maintained on Perry, including records contained in the Inmate Central Files, and
SENRY, the computer data base which contains inmates’ personal data, administrative
remedy history, sentence computation, disciplinary history, housing assignments and
other pertinent information. [Record No. 53-2, ¶ 2]

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of his property and documents relating to this case were seized and/or the subjedt
of tampering. Thus, he contends that he was unable to properly respond to the
defendants’ motion. [Record No. 58] Perry attached his own affidavit in which he
claimed that, while trying to respond to the defendant’s motion to
dismiss/summary judgment, he was denied access to the Inmate Electronic Law
Library (“ELL”) on specific occasions and that he was also denied access to his
personal property and legal materials. [Record No. 58-1]
The defendants responded that Perry’s right of access to the courts was not
hindered. [Record No. 61] Billings indicates that, after Perry was transferred
from USP-McCreary to USP-Lewisburg, he had ongoing access to the ELL and
that he used it on multiple dates, often for substantial periods. [Record No. 61, p.
2] Billings also indicates that, on September 21, 2015, Perry received six boxes of
personal property including three boxes of legal materials. Perry admits that he
received his personal property and legal papers on September 21, 2015. [Record
No. 58-1, p.2, ¶ 10]
The defendants acknowledge that Perry may have experienced some delay
in receiving his legal material and that on a few specific dates he may not have had
access to the ELL. However, they argue that Perry was not prejudiced by the
delay. The defendants note that the Court promptly granted Perry’s request for
additional time and that Perry subsequently received his personal property, used
the law library, and filed a response to their motion. On February 9, 2016, the
Court denied Perry’s motion seeking docket entries. [Record No. 66]
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II.
A.

The May 1, 2014, Incidents

Chaney states that, on April 28, 2014, Perry submitted an “Informal
Resolution Form” in which he complained about an incident involving Officer
Rose which occurred two days earlier. [Chaney Decl., Record No. 53-3, ¶ 3; see
also Record No. 53-2, pp. 75-76, “Informal Resolution Form”] In his informal
remedy request, Perry alleged that Officer Rose had threatened to physically and
sexually assault him, and had stolen his personal property. On May 1, 2014,
Chaney met with Perry as part of the investigation regarding his allegations. [Id.]
Chaney states that during this meeting, he did not instruct or ask Perry to “recant”
his complaint against Officer Rose, but told Perry that: (i) he needed to submit a
sworn affidavit to verify the allegations of his complaint; (ii) he needed to be fully
truthful in his affidavit; and (iii) if he intended to change any details about his
allegations, he should do so before he signed the affidavit and submitted his
complaint. [Id.]
According to Chaney, Perry did not wish to change his story but, instead,
intended to proceed with his sworn affidavit. Chaney took Perry’s statement and
prepared an affidavit which Perry reviewed and signed. [Id., ¶ 4] Lt. Chaney
determined that, to decrease the possibility of further conflict, it was best for
Perry, Officer Rose, and the institution, if Perry was moved to another housing
unit where Officer Rose did not work. [Id.] Chaney explains that Perry’s new
housing unit was still located general population, and not in the more restrictive
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Special Housing Unit (“SHU”). By remaining in the general population, Perry
could continue to participate in the same prison programs and work with the same
Unit Team. [Id.]
Chaney states that his decision to transfer Perry to another housing unit was
not in retaliation for Perry’s having filed a complaint against Officer Rose. [Id., ¶
5] Further, Chaney indicates that Perry’s new housing assignment (Unit 1B) did
not subject Perry to any increased risk of danger because all housing units at USPMcCreary have inmates from variety of backgrounds, race and geographical
locations. [Id., ¶ 5; see also, Weiss Decl., Record No. 53-4, ¶ 4] Chaney further
explains that all housing decisions are made to prevent one group from becoming
too strong within a unit, thus ensuring the safety of all inmates. [Id.]
Defendant Weiss contends that he did not know that Perry had filed a
complaint against Officer Rose because BOP policy prevented him from learning
about any complaint filed by a prisoner against a prison staff member. [Weiss
Decl., Record No. 53-4, ¶ 3]

Weiss states that, pursuant to BOP Program

Statement (“PS”) 1210.24, allegations of staff misconduct remain confidential and
only authorized staff have access to the files and information relating to those
allegations. [Id.] Weiss states that because he was the “on-duty” Lieutenant at
USP-McCreary, he did not have access to the files which the SIA office
maintained, including the staff misconduct files, and that if he ordered Perry to
report to his new housing unit, he did not do so based on any knowledge that Perry
had lodged a complaint against Officer Rose. [Id.] Weiss asserts, that because he
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was unaware that Perry had filed a complaint against Rose, he could not have
retaliated against Perry based on his having filed a complaint against a prison
official. [Id.]
B.

The June 27-28, 2014, Incidents

Fowler states that when Perry became involved in a dispute with the
Correctional Officer who was searching his cell on June 27, 2014, Perry was
escorted to “…the Lieutenant’s Office at USP McCreary.” [Fowler Decl., Record
No. 53-5, ¶ 3] While Perry was in the holding cell of the Lieutenant’s Office,
Fowler observed a homemade weapon in Perry’s cell. As a result, Perry was
placed in the SHU pending the outcome of a disciplinary investigation and hearing
based on the charge of possession of a weapon.2 [Id.] Perry was escorted from the
Lieutenants’ Office to SHU. [Id.]
Altizer denies that he took Perry to a remote area of the prison and
assaulted him on June 27, 2014. [Altizer Decl., Record No. 53-6, ¶ 3] He states
that when Perry arrived in the SHU, Perry was instructed to remove his clothing
and submit to a visual search. [Id. ¶ 4] And while Perry removed his clothing, he
refused to submit to a visual search. [Id.] Based on Perry’s poor attitude and
history of possessing weapons, a calculated “use of force team” was assembled at
2

Billings states that Perry was charged with Possession of a Weapon, a BOP violation.
However, after Perry requested that the footage from a surveillance camera be preserved,
the Incident Report was expunged because the staff had failed to preserve the footage.
See Billings Decl. Record No. 53-2, ¶ 4. According to BOP Program Statement, 5270.09,
Inmate Discipline Program, an expunged Incident Report is physically removed from an
inmate’s file and is only available to certain users of the SENTRY Database, and further
documentation of that incident and report are unavailable. [Id.] The expungement is also
documented in the “Inmate Discipline Incident Report History.” [Id., at p. 16]

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the Warden’s direction to place Perry in hard ambulatory restraints until he could
display an extended period of calm behavior. [Id.] Lt. Altizer states that, before
the “use of force team” entered the cell, Perry submitted to restraints, was
removed from the cell, pat searched, cleared with a metal detector, provided with
new clothing, and placed in hard ambulatory restraints at 9:10 p.m., on June 27,
2014. [Fowler Decl., Record No. 53-5, ¶ 6]
At that time, Nurse Stephanie Sumner performed a medical assessment of
Perry. [Sumner Decl., Record No. 53-7, p. 1, ¶ 3; id., pp. 4-5] Sumner noted in
her assessment that Perry denied having any pain or injuries. [Record No. 53-7, p.
1 ¶ 4; see also p. 4] Further, Nurse Sumner did not observe any injuries and
concluded that the restraints were adequately placed because she could place a
finger between the cuff and Perry’s wrist. [Id.] Sumner noted that Perry had good
circulation, positive pulses and normal vital signs. [Id.]
BOP policy requires prison lieutenants to conduct checks of inmates held in
ambulatory restraints every two hours. [Fowler Decl., Record No. 53-5, ¶ 5 (citing
BOP PS 5566.06, Use of Force and Application of Restraints)] In accordance
with that policy, prison lieutenants checked Perry’s ambulatory restraints on June
27, 2014, at the following two-hour intervals: 9:10 p.m. and 11:10 p.m., and on
June 28, 2014, at 1:10 a.m., 3:10 a.m., 5:10 a.m., 7:10 a.m., and 9:10 a.m. [Id., ¶¶
5-6]
On June 28, 2014, Fowler checked Perry’s restraints at 9:10 a.m., and again
at 11:10 a.m. [Id. ¶ 6] During the 9:10 a.m. check, Perry “…continued to refuse
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to submit to a visual search and continued to display a poor attitude.” Fowler
determined that Perry, therefore, should remain in ambulatory restraints. [Id., ¶ 7]
When Fowler checked Perry’s restraints at 11:10 a.m., Perry complied with staff
orders and agreed to submit to a visual search, and the ambulatory restraints were
removed. [Id. ¶ 7] Fowler states that at that time, he observed no injuries to
Perry’s wrists, and that the restraints did not appear to have been applied in such a
manner as to have restricted circulation in Perry’s hands. [Id.]
Fowler attached to his Declaration the “Two-Hour Lieutenant Restraints
Check Form 24-Hours.” [Record No. 53-5, pp. 5-7]. This report consists of eight
separate entries of the lieutenants who were monitoring Perry’s status every two
hours while he remained in restraints. These entries reflect that, during the first
seven two-hour checks, Perry refused to submit to a proper visual search. [Id.]
On June 28, 2014, Lt. Fowler wrote:
Inmate complied with Staff orders. Removed from Restraints @
11:10 a.m.
Action Taken: Removed from Ambulatory Restraints
C.

Perry’s Administrative Exhaustion Efforts

On May 27, 2014, Perry submitted a Request for Administrative Remedy to
the Warden.

That the request was assigned Remedy Identification Number

(“RIN”) 780768-F1. [Record No. 53-2 ¶ 6; see also, Request for Administrative
Remedy at Record No. 53-2, p. 74]. Perry alleged that, on April 29, 2014, he filed
a complaint against Correctional Officer Rose, but that it had never been
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processed and that, on May 1, 2014, he e-mailed the SIA about the alleged lack of
a response. [Id.] Perry also stated that later that day, Lt. Chaney questioned him
about his complaint and the incident with Officer Rose. [Id.] Perry indicated that
he “experienced reprisal in the form of loss of job and moving to a separate
housing unit which was a hostile environment for inmates from my regional area.”
[Id.] Perry asked that Officer Rose be removed from his duties. [Id.]
On June 4, 2014, Warden J.C. Holland denied Perry’s remedy request,
identified as RIN 780768-F1, explaining that allegations of staff misconduct were
taken seriously, but that inmates were not entitled to learn the outcome, if any, of
the reviews of such claims. [Id. ¶ 7; see also, Record No. 53-2, p. 77] Warden
Holland also informed Perry that if he was dissatisfied with the response, he could
appeal the decision to the Regional Director. [Id.] According to Billings, Perry
did not file an appeal with the Regional Director. [Record No. 53-2, ¶ 7]
On that same day (June 4, 2014), Perry submitted a Request or
Administrative Remedy to the Regional Director for the BOP’s Mid-Atlantic
Region (“MARO”). [Id., ¶ 8; see also, Record No. 53-2, p. 67 (“Administrative
Remedy Generalized Retrieval Full Screen Format”] The MARO identified the
remedy request as RIN No. 781874-R1 and listed the description of the issue
asserted as “Other Complaint Against Staff.” [Record No. 53-2, p. 67]

The

following day, the MARO rejected RIN No. 781874-R1 because: (1) it was not
submitted on the proper form; (2) a request at the institutional level had not been
filed before filing at the MARO (as required by the BOP’s administrative remedy
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process), and (3) the issues raised in the filing were not sensitive in nature. [Id.]
Perry’s remedy request and supporting materials were returned to him. [Id.]
On July 14, 2014, and September 15, 2014, Perry submitted administrative
remedy appeals to the BOP’s Office of General Counsel, in which he challenged
decisions relating to administrative discipline.3 [Billings Decl., Record No. 53-2,
p. 4, ¶ 9; see also, id., at p. 68 (“Administrative Remedy Generalized Retrieval
Full Screen Format”] The General Counsel’s Office rejected both appeals and
returned them to Perry because he had not submitted the appeals on the proper
form. [Id.] According to Billings, even if Perry had complied with the filing
requirements, those appeals involved disciplinary actions and were unrelated to
the claims Perry is asserting in this proceeding. [Record No. 53-2, p. 4, ¶ 9.]
Billings states that, during the spring of 2015, Perry filed several administrative
remedy requests in which he complained of “staff misconduct” and
“unprofessional conduct by staff,” but that Perry filed all of those remedy requests
well past the 20-day filing requirement. Further, all were rejected for various
deficiencies. [Id., at ¶ 10]
To the extent Perry may seek to substitute the United States as a party
based on his allegation that Lt. Altizer assaulted him, Billings states that Perry
failed to present an administrative claim for injuries related to those alleged torts
as required by 28 U.S.C. § 2675. [Id., p. 5 ¶ 12] Billings further indicates that
3

One of the remedy requests which Perry submitted to the BOP Office of General
Counsel was identified as RIN No. 770659-R2, but Billings did not identify the RIN of
the other remedy request which Perry submitted.

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since June 27, 2014 (the date on which Perry alleges that Altizer assaulted him),
Perry has submitted three FTCA administrative claims, but two of those claims
concerned personal property issues (Case Type Classification, Section 3723),
while the other involved an unrelated incident on March 17, 2015. [Id.; see also
FTCA claim form dated 5/14/15, Record No. 53-2, p. 79] Perry has not submitted
any FTCA administrative claim alleging that Altizer assaulted him on June 27,
2014. [Id.]
D.

The Defendants’ Legal Arguments

The defendants argue that the Court should dismiss the remaining claims
asserted against them because Perry failed to properly and fully exhaust all of the
constitutional claims according to the specific steps set forth in the BOP’s
administrative remedy process. They contend that they are entitled to summary
judgment because no genuine issue of material fact exists regarding any of Perry’s
claims alleging retaliation, excessive force and/or assault, or deliberate
indifference to his medical needs. Finally, the defendants assert that, to the extent
that Perry asserts a state law assault claim against Lt. Altizer under the FTCA, that
claim should be dismissed because Perry failed to present an administrative claim
as required by 28 U.S.C. § 2675. Absent such exhaustion, the defendants contend
that this Court lacks subject-matter jurisdiction over any FTCA claim alleging
assault.

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III.
On October 5, 2015, Perry responded to the defendants’ motion, claiming
that he was denied the opportunity to conduct full discovery prior to defendant’s
request for summary judgment. [Record No. 60] Perry alleged that he needed
access to audio and video footage regarding the force applied to him on June 27,
2014, to demonstrate that it was unnecessary; that he complained on camera about
his physical injuries; and that the restraints applied were excessive and punitive.
Perry also asserted that he needed access to various personnel files to demonstrate
that the defendants have a propensity to engage in aggressive and assaultive
behavior. He further alleged that if he were able to conduct discovery, such
discovery would show that prison staff is inadequately trained; that they deviate
from USP-McCreary’s Institutional Supplements (local policy and procedures);
and that the defendants are aware of and/or witnessed violations of Perry’s Eighth
Amendment rights and failed to intercede. [Id., pp. 1-2]
Perry claims that Altizer used excessive force to punish him, but that
Altizer used the excuse/pretext that Perry had refused to submit to a visual search
to justify the use of force. [Id., p. 2] Perry states that he remained in ambulatory
restraints for three days (June 27, 2014 to June 30, 2014) and that being left in the
restraints for an extensive period of time violates BOP PS 5566.06 “Use of Force.”
[Id., pp. 3-4]
Perry argues that Chaney’s justification for moving him to Unit 1B
(because it would allegedly decrease the possibility of conflict between him and
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Officer Rose) lacked merit because later in June 2014, Officer Rose was assigned
to work in Unit 1 “prior to the completion of the investigation.” [Id., p. 3] Perry
also contends that Chaney claimed that Perry would have the same Unit Team
after the transfer. However, after the transfer, he actually had a different Unit
Team but the same Unit Manager. [Id.] Perry further disputes Weiss’s position
that he knew nothing about the complaint filed against Officer Rose. Perry states
that, during the shift change, Lt. Weiss told Perry that Lt. Chaney had told him
(Weiss) about the complaint which Perry had filed against Officer Rose. [Id.]
Perry further states:
When inmate returned to Unit 6 from Lieutenant’s office, to move
his property, Unit Officer Jenkins also knew about the inmate filing
the complaint. Thus, how was Lt. Chaney confidential? Lt. Weiss
told unit 1B officer of Plaintiffs situation.
[Id., p. 3]
Perry attached the handwritten affidavit of a federal inmate identified as
Antonio Harris, BOP Register No. 04694-061.4 [Record No. 60-1, pp. 3-4] In this
affidavit dated June 11, 2014, Harris stated what Perry had told him about the
events surrounding the May 1, 2014, event. [Id., ¶¶ 1-6] Harris states that Perry
asked him to accompany Perry to Lt. Chaney’s office on May 1, 2014, see id., ¶ 2,
but Harris does not state that he actually accompanied Perry to Lt. Chaney’s office
on May 1, 2014. Harris merely reiterates what Perry told him about his (Perry’s)
conversation with Lt. Chaney, see id. ¶ 3. Harris states that when he helped Perry
4

Perry may have written Harris’s affidavit. The handwriting appears nearly identical to
Perry’s handwriting.

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move to Unit 1B, the inmates in that Unit were hostile to Perry because he was
from Ohio, and that “a violent incident took place in Unit 1B several days before
which involved inmates from Ohio who Perry associated with.” [Id., ¶ 8] Harris
further states that when Lt. Weiss walked into Unit 1B, he (Harris) told Weiss that
Perry needed to be moved to another unit because Perry was from Ohio, but that
Weiss responded, “I know he’s right where we want him to be.” [Id., ¶ 9]
Perry also attached the affidavit from USP-Lewisburg inmate “J.” (Joshua)
Meregildo, BOP Register No. 64832-054.5 [Id., pp. 5-6] Meregildo states that, on
July 3, 2014, he and Perry were confined in the same SHU cell in USP-McCreary.
[Id., ¶ 1]. Meregildo states that Perry had open sores on both wrists and that Perry
told him the sores were painful, itching, and burning because he had not had a
shower since June 27, 2014. [Id., ¶ 2] Meregildo states that Physicians’ Assistant
Bryant told Perry that he would order Naproxen for the pain and an antibiotic for
possible infection, but that when Perry told Bryant the sores came from the
restraints, Bryant said that there was nothing he could do. [Id., ¶ 4] Meregildo
states that, on July 7, 2014, while Nurse Sumner was conducting the pill line,
Perry showed her his wrists and asked, “[w]hy are you refusing me medical
treatment?” Sumner replied, to the effect of, “[i]f you were not in restraints, you
would not have to worry about your wrists,” and walked away. [Id., ¶ ¶ 5-6]

5

Perry may have also written Meregildo’s affidavit. The handwriting appears to be
nearly identical to Perry’s handwriting.

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In their reply, the defendants dispute Perry’s claim that discovery is
needed. [Record No. 63] They contend that Perry has alleged in only broad terms
that he needs to conduct discovery to respond to their motion. They further assert
that Perry did not identify the specific discovery needed. Finally, the defendants
contend that discovery would not change the legal and factual defects of Perry’s
case.
IV.
A.

Motion for Docket Entries [Record No. 58]

The Court recently denied this motion [Record No. 66], but will address the
issue in more detail insofar as Perry’s motion is integral to the defendants’
pending motion. On August 13, 2015, Perry moved the Court for an extension of
time to respond to the defendants’ motion to dismiss or for summary judgment.
On the same date, the Court granted Perry’s motion and extended the deadline to
respond through September 29, 2015. [Record No. 57] On September 23, 2015,
Perry filed a motion asking the Court to provide him with pleadings that had been
filed in this matter, claiming that his transfer to USP-Lewisburg had delayed the
receipt of his legal papers and that he had been unable to access to ELL on specific
occasions. Perry also claimed that these events had limited his ability to respond
to the defendants’ motion. [Record No. 58]
Two days later, Perry filed a response to the defendants’ motion. Perry’s
response included his affidavit, the affidavits of two other BOP prisoners,
correspondence to the Office of Inspector General, a July 3, 2012, letter from
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Perry to the “Bureau Director,” the BOP’s July 8, 2015, response to Perry’s
Freedom of Information request, and excerpts from various BOP Program
Statements. 6 [Record No. 60; Record No. 60-1; 60-2]
Billings has sufficiently documented that, after Perry’s transfer to USPLewisburg, the plaintiff had ongoing access to, and used, the ELL on multiple
occasions between July 26, 2015, and September 27, 2015, for periods lasting
from eight to 115 minutes. [Record No. 61-1]. Perry admits that he received his
personal property and legal papers on September 21, 2015. [Record No. 58-1, p. 2,
¶ 10] While he may have experienced some initial delay in receiving his personal
property and legal materials, Perry suffered no actual prejudice from that initial
delay because he filed a timely, comprehensive response to the defendants’ motion
which was supported by several affidavits and numerous other exhibits. Because
Perry’s right of access to the courts was not impaired, the Court denied his motion
requesting docket entries on February 9, 2016. [Record No. 66]
B.

Motion to Dismiss/Summary Judgment [Record No. 53]
1.

Standard of Review

Because both parties have submitted sworn declarations and other materials
outside of the pleadings, the Court will treat its arguments as a motion for
summary judgment under Federal Rule of Civil Procedure 56.

6

See Soper v.

Perry’s Response [Record No. 60] was docketed on October 5, 2015 but under the
“prison mailbox rule,” it was timely because Perry dated it “September 25, 2015.” [Id.,
p. 6]. See Richard v. Ray, 290 F.3d 810, 812–13 (6th Cir. 2002) (per curiam) (extending
Houston v. Lack, 487 U.S. 266 (1988)).

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Hoben, 195 F.3d 845, 850 (6th Cir. 1999); Song v. City of Elyria, Ohio, 985 F.2d
840, 842 (6th Cir. 1993). A motion under Rule 56 challenges the viability of
another party’s claim by asserting that at least one essential element of that claim
is not supported by legally-sufficient evidence. Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 324-25 (1986).

To prevail on a motion for

summary judgment, the non-moving party must show sufficient evidence to create
a genuine issue of material fact. Klepper v. First American Bank, 916 F.2d 337,
341–42 (6th Cir. 1990).

Drawing all reasonable inferences in favor of the

nonmoving party, the Court must determine “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251–52 (1986).
The moving party does not need his or her own evidence to support this
assertion, but need only point to the absence of evidence to support the claim.
Turner v. City of Taylor, 412 F. 3d 629, 638 (6th Cir. 2005). The responding party
cannot rely upon allegations in the pleadings, but must point to evidence of record
in affidavits, depositions, and written discovery which demonstrates that a factual
question remains for trial. Hunley v. DuPont Auto, 341 F. 3d 491, 496 (6th Cir.
2003); United States v. WRW Corp., 986 F. 2d 138, 143 (6th Cir. 1993) (“A trial
court is not required to speculate on which portion of the record the non-moving
party relies, nor is there an obligation to ‘wade through’ the record for specific
facts.”).
-19-

A district court must review all of the evidence presented by the parties in a
light most favorable to the responding party, with the benefit of any reasonable
factual inferences which can be drawn in his favor. Harbin-Bey v. Rutter, 420 F.
3d 571, 575 (6th Cir. 2005). If the moving party demonstrates that there is no
genuine dispute as to any material fact and that he or she is entitled to a judgment
as a matter of law, he or she is entitled to summary judgment. Kand Medical, Inc.
v. Freund Medical Products, Inc., 963 F. 2d 125, 127 (6th Cir. 1992). If the
applicable substantive law requires the responding party to meet a higher burden
of proof, his evidence must be sufficient to sustain a jury’s verdict in his favor in
light of that heightened burden of proof at trial. Harvey v. Hollenback, 113 F. 3d
639, 642 (6th Cir. 1997); Moore, Owen, Thomas & Co. v. Coffey, 992 F. 2d 1439,
1444 (6th Cir. 1993). The Court will now examine the record to determine if the
defendants have carried their burden of proof.
2.

First Amendment Retaliation Claims Against Lt. Chaney
and Lt. Weiss

The defendants argue that Perry failed to properly and fully exhaust his
First and Eighth Amendment claims in accordance with the BOP’s administrative
remedy process, including any assault claim that might fall under the FTCA. In
his response, Perry states that he requested the appropriate administrative remedy
forms but prison officials refused to provide those forms to him. The Court
concludes that the defendants have demonstrated that Perry failed to

-20-

administratively exhaust his First Amendment retaliation claims against Chaney
and Weiss.
On May 27, 2014, Perry submitted a grievance form (a BP-9 Request for
Administrative Remedy) to the Warden which was identified as RIN 780768-F1,
and was classified as a claim alleging “Inappropriate Conduct by Staff.” [Record
No. 53-2, p. 3, ¶ 6; see also, Record No. 53-2, p. 67] In that remedy request, Perry
alleged that (i) a complaint which he had filed against Officer Rose in late Aprilearly May 2014 had never been processed; (ii) he had e-mailed the SIA advising
of the alleged inactivity; and (iii) on May 1, 2014, Lt. Chaney had questioned him
about his complaint against Rose. Perry also alleged that he “… experienced
reprisal in the form of loss of job and moving to a separate housing unit which was
a hostile environment for inmates from my regional area due to an incident which
took place several weeks prior.” [Id.]

[Record No. 53-2, p. 3, ¶ 6; see also,

Remedy Request, Record No. 53-2, p. 74]
On June 4, 2014, Warden J. C. Holland responded, stating that allegations
of staff misconduct were taken seriously, but that inmates are not entitled to the
outcome of investigations into claims alleging staff misconduct. [Billings Decl.,
Record No. 53-2, p. 3, ¶ 7; Holland’s Response, Record No. 53-2, p. 77] Holland
informed Perry that if he was not satisfied with the response, he could appeal the
decision to the Regional Director. [Id.] However, Perry did not appeal. See

-21-

Billings Decl., Record No. 53-2, p. 3, ¶ 7. Perry contends that the prison staff
prevented him from exhausting his claims. [Record No. 60].7
Perry’s stated excuse for not properly exhausting his retaliation claim lacks
merit. Warden Holland denied Perry’s BP-9 remedy request on June 4, 2014, but
Perry did not file the requisite BP-10 appeal to the BOP’s Regional Office at any
time thereafter. Perry blames his failure to appeal the denial of his retaliation
grievance to the BOP’s Regional Office on the fact that he was confined in the
SHU and that while confined in the SHU, various prison officials allegedly
refused to provide him with appeal forms. But according to Perry’s own version
of the facts, he was not sent to the SHU until June 27, 2014, or over three weeks
after Warden Holland denied his BP-9 remedy request. Perry does not allege, and
the record does not reflect, that Perry was confined in the SHU during the almost
three-week period between June 4, 2014, and June 27, 2014.
Perry offers no explanation for his failure to appeal Warden Holland’s June
4, 2014, denial of remedy request (RIN 780768-F1) to the MARO within the
7

Perry states:
In regards to the section titled “Administrative Remedy History; it is
Plaintiff’s position that he attempted traditional utilization of the
administrative remedy/inmate grievance process. However, staff refused
him the standard forms. In particular, Unit Manager Poston, former
counselor Lumley, Case Manager Clark, and Counselor Lawson
repeatedly refused administrative remedy forms while Plaintiff in S.H.U.
(6/27/2014 until 8/26/14). Most importantly, staff cannot address issues
which they are unaware of….”

[Record No. 60, p. 5]

-22-

proper time-frame. And to the extent that he blames that failure on the alleged
actions or inactions of various prison officials during his confinement in the SHU
(some three weeks later), his argument lacks merit.
On June 4, 2014, (the same date on which Warden Holland denied Perry’s
remedy request identified as RIN No. 780768-F1) the MARO received a Request
for Administrative Remedy from Perry which it classified “Other Complaint
against Staff,” identified as RIN 781874-R1. [Billings Decl., Record No. 53-2, p.
4 ¶ 8; see also, Record No. 53-2, p. 67] The next day, the MARO rejected RIN
781874-R1 because: (i) it was not submitted on the proper form; (ii) Perry had not
filed a request at the prison before filing at the regional level as required by the
BOP’s administrative remedy program; and (iii) the issues raised in the filing were
not sensitive as Perry had alleged. [Billings Decl., R. 53-2, p. 4, ¶ 8; see also id.,
p. 67]
However, filing a BP-9 “Request for Administrative Remedy” with the
MARO is not the procedure dictated by the BOP’s administrative remedy process.
The BOP’s tiered administrative grievance process, known as the Administrative
Remedy Program, is set forth in BOP PS 1330.16, Administrative Remedy
Program, and in 28 C.F.R. §§ 542.10-542.19. Under this process, an inmate must
first informally present an issue of concern to staff using a “BP-8” form, and the
staff must attempt to informally resolve the issue before the inmate submits a
formal grievance.

28 C.F.R. § 542.13(a).

If the issue cannot be resolved

informally, the inmate may initiate the formal grievance process by submitting a
-23-

formal written grievance, using the appropriate Administrative Remedy Request
Form (“BP-9” form), to the Warden of the prison. 28 C.F.R. § 542.14.
If the inmate is not satisfied with the Warden’s response, he may then
appeal to the BOP’s Regional Director (for the geographical region in which he is
confined) using a “BP-10” form. 28 C.F.R. § 542.15. Finally, if the inmate is not
satisfied with the Regional Director’s response, he may appeal to the BOP’s
Office of General Counsel (“OGC”), using a “BP-11 form”. An appeal to the
OGC is the final step in the Administrative Remedy Program and the grievance
process. 28 C.F.R. § 542.15.
The Prison Litigation Reform Act of 1995 (“PLRA”) provides: “No action
shall be brought with respect to prison conditions under section 1983 ... by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
This exhaustion requirement is mandatory. Jones v. Bock, 549 U.S. 199, 216
(2007). Further, prisoners must comply with an agency’s deadlines and other
critical procedural rules, which means “…going through all of the steps that the
agency specifies, obeying all directions, and adhering to all deadlines set by the
administrative rules.”

Woodford v. Ngo, 548 U.S. 81, 90 (2006). “Proper

exhaustion demands compliance because no adjudicative system can function
effectively without imposing some orderly structure on the course of its
proceedings.” Id. at 90-91; see also Peterson v. Cooper, 463 F. App’x 528, 530
(6th Cir. 2012) (citing Wooford and holding that to satisfy the exhaustion
-24-

requirement, a prisoner must “complete the administrative review process in
accordance with the applicable procedural rules.”)
Thus, in addition to failing to appeal Warden Holland’s June 4, 2014,
denial of his remedy request (RIN No. 780768-F1) to the MARO, Perry submitted
an incorrect form to the MARO on June 4, 2014, when he claimed that he was
raising a “sensitive” issue. The MARO immediately rejected that non-compliant
submission on June 5, 2014. [Billings Decl., Record No. 53-2, p. 4, ¶ 8; see id., p.
67] Again, when Perry submitted RIN 781874-R1 to the MARO on June 4, 2014,
he was not confined in the SHU on that date.
To the extent Perry blames his failure to submit the proper remedy form to
the MARO on his alleged confinement in the SHU, the facts refute his argument.
Even so, the MARO rejected RIN 781874-R1 on June 5, 2014, finding that Perry
had not set forth a “sensitive” issue, and Perry did not cure his defective remedy
request while he remained in the prison’s general population.
Perry is thoroughly familiar with the BOP’s administrative remedy process,
having filed 111 administrative remedies since his federal confinement began in
2005. [Billings Decl., Record No. 53-2, pp. 2-3, ¶ 5; pp. 15-73] Perry’s detailed
grievance history establishes that he has repeatedly flouted the simple
requirements of the BOP’s administrative remedy process by filing one noncompliant remedy request after another, resulting in the outright rejection of
approximately 61 of his 111 attempted administrative remedy submissions. [Id.]

-25-

Between 2009 and 2015, Perry repeatedly violated the remedy process by:
(i) prematurely submitting remedy requests to the BOP’s Regional Office without
first submitting a BP-9 grievance to the Warden; (ii) prematurely submitting a
formal remedy request to the Warden without first having submitted an informal
remedy; (iii) failing to submit his remedy request or appeal on the proper form;
(iv) failing to include necessary attachments; (v) failing to observe the stated page
limitations; submitting BP-10 appeals to the wrong Regional Office; (vi) sending
remedy requests by mail instead of through the institution; and (vii) raising issues
that had been addressed and decided in prior remedy proceedings. [Id.]
Failure to exhaust is an affirmative defense and can serve as a basis for
dismissal if properly proven by the defendants. See Jones v. Bock, 549 U.S. at
216. Here, the July 20, 2015, Declaration of Joshua Billings and the authenticated
BOP records attached to it “… establish the absence of a ‘genuine dispute as to
any material fact’ regarding nonexhaustion.” Risher v. Lappin, 639 F.3d 236, 240
(6th Cir. 2011) (quoting Federal Civil Rule 56(a)); see also, Werdlow v. Caruso,
No. 09-11009, 2009 WL 4948490 at *6 (E.D. Mich. Dec. 14, 2009) (“… failure to
exhaust does provide sufficient basis for dismissal under Rule 56(c).”)
Perry was required to submit his appeal of the denial of RIN 7080768-F1 to
the BOP’s Regional Office on or before June 24, 2014, which was three days
before he was sent to the SHU on June 27, 2014. Perry’s conclusory allegation-that the USP-McCreary prison staff prevented him from exhausting his retaliation
claims by not providing him with the proper forms while he was confined in the
-26-

SHU--is refuted by the record. And as other courts have recognized, conclusory
allegations are not evidence and are not adequate to oppose a motion for summary
judgment. Miller v. Aladdin Temp-Rite, LLC, 72 F. App’x 378, 380 (6th Cir.
2003) (citing Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 888 (1990)); McDonald
v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990).
Perry did not fully and completely exhaust his First Amendment retaliation
claims against Cheney and Weiss stemming from the alleged events of May 1,
2014.

Thus, no genuine issue of fact exists with respect to the defendants’

argument and affirmative defense that Perry failed to properly and fully exhaust
his retaliation claims based on the alleged events of May 1, 2014.
Further, Perry’s retaliation claim lacks substantive merit.

To be sure,

retaliation based upon a prisoner’s exercise of his or her constitutional rights
violates the Constitution. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.
1999). To establish a First Amendment retaliation claim, the plaintiff must prove
that: (1) the plaintiff engaged in activities protected by the Constitution or statute;
(2) the defendant took an adverse action that would deter a person of ordinary
firmness from continuing to engage in that conduct; and (3) the adverse action was
taken at least in part because of the exercise of the protected conduct. The plaintiff
has the burden of proof regarding all three elements. See, e.g., Murray v. Evert, 84
F. App’x 553, 556 (6th Cir. 2003); Green v. Tudor, 685 F. Supp. 2d 678, 692
(W.D. Mich. 2010).

-27-

Moreover, the plaintiff must prove that the exercise of the protected right
was a substantial or motivating factor in the defendant’s alleged retaliatory
conduct. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977); Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001). If the plaintiff
makes such a showing, the defendants may still avoid liability by showing “that
[they] would have taken the same action in the absence of the protected activity.”
Whiteside v. Parrish, 387 F. App’x 608, 612 (6th Cir. 2010) (quoting Thaddeus-X,
175 F.3d at 399); Jones v. Smolinski, No. 1:09-CV-633, 2010 WL 7370364, at *6
(W.D. Mich. Aug. 31, 2010). Here, Chaney has demonstrated that he would have
taken the same action of moving Perry to another housing unit even if Perry had
not filed his institutional complaint against Officer Rose.
Perry alleges that in late April 2014, he filed an institutional complaint in
which he alleged that Officer Rose had threatened to physically and sexually
assault him. The institutional complaint constitutes protected activity but, given
the serious nature of Perry’s allegations against Officer Rose, Chaney’s decision to
immediately move Perry to another area of the prison (away from Officer Rose)
was not unreasonable, especially since Perry had complained to the SIA that no
action had been taken on his complaint against Officer Rose. A prudent prison
administrator would or should take the same action where an inmate has alleged
that a correctional officer in his housing unit has threatened to assault him. As
Chaney explains, Perry remained in the general population, was able to continue

-28-

participating in his prison programs and, at that time, was not placed in the more
restrictive SHU. [Record No. 53-3, p. 2, ¶ 4]
An inmate does not have a liberty interest in assignment to a particular
institution. Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano,
427 U.S. 215, 224-25 (1976); Montanye v. Haymes, 427 U.S. 236, 243 (1976);
Newell v. Brown, 981 F.2d 880, 883 (6th Cir. 1992); Beard v. Livesay, 798 F.2d
874, 876 (6th Cir. 1986). “A fortiori, an inmate has no constitutional right to be
confined in a particular cell within that prison.” Mulazim v. Corrigan, 7 F. App’x
427, 429 (6th Cir. 2001) (citing Williams v. Faulkner, 837 F.2d 304, 309 (7th Cir.
1988)). Absent “extraordinary circumstances” decisions about “cell assignments
are a normal part of prison life, and thus typically do not amount to an adverse
action.” LaFountain v. Harry, 716 F.3d 944, 949 (6th Cir. 2013).
Here,

“extraordinary

circumstances”

were

not

present.

Chaney’s

Declaration substantiates that placing Perry in Unit 1B was not an act of retaliation
because that unit did not subject Perry to any increased level of danger. All
housing units in USP-McCreary are comprised of inmates from various
backgrounds, races, and geographical locations. Further, housing assignments are
made to prevent one group from a particular demographic are from becoming too
strong within that unit. [Record No. 53-3, p. 2, ¶ 5]
Perry offers only his conclusory allegations that Unit 1B was an adverse
placement due because it allegedly housed inmates who were known to be hostile
to inmates from his state of Ohio. Perry submits an affidavit (which he appears to
-29-

have prepared) from Inmate Antonio Harris, who states that “… inmates in Unit
1B were hostile towards Perry and did not want accept him in any cells due to
Perry [being] from Ohio and a violent incident took place in Unit 1B several days
before which involved inmates from Ohio who Perry associated with.” [Record
No. 60 pp. 3-4] But Harris’s affidavit appears to be hearsay based on what Perry
told Harris, not based on Harris’s own personal knowledge and observations that
inmates in Unit 1B were hostile towards all inmates from Ohio. Chaney and
Weiss have demonstrated that no genuine issue of material fact exists regarding
Perry’s retaliation claim. For the reasons outlined above, they are entitled to
summary judgment on this claim.
3.

Eighth Amendment Excessive Force Claims Against
Altizer

Perry claims that Altizer assaulted him on June 27, 2014, but Altizer denies
that allegation. Regarding this issue, Perry responds as follows to the defendant’s
motion:
“… Plaintiff was assaulted in the R & D department near the x-ray
body scanner. Specifically, Plaintiff was pushed into the wall and
had his handcuffs yanked upward by unknown staff accompanied by
Lt. Altizer. Plaintiff suffered a sore right shoulder.
[Record No. 60, pp. 2-3]
The Eighth Amendment prohibits prison officials from using excessive
force against inmates. See e.g., Wilkins v. Gaddy, 559 U.S. 34, 37-40 (2010);
Farmer v. Brennan, 511 U.S. 825, 832-835 (1994); Hudson v. McMillian, 503
U.S. 1, 4-9 (1992); Whitley v. Albers, 475 U.S. 312, 318-22 (1986). The Eighth
-30-

Amendment also protects prisoners from cruel and unusual punishment imposed
by “the unnecessary and wanton infliction of pain.” Hudson 503 U.S. at 5. To
maintain prison security and discipline, however, inmates may be subjected to
physical contact that would be actionable as assault under common law. Combs v.
Wilkinson, 315 F.3d 548, 556 (6th Cir. 2002). “To determine whether a claim of
assault rises to a level of constitutional magnitude, a court must consider the
reasons or motivation for the conduct, the type of force used, and the extent of the
inflicted injury.” Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993).
An Eighth Amendment claiming alleging excessive force by officials has
both an objective and subjective component. Cordell v. McKinney, 759 F.3d 573,
580 (6th Cir. 2014). Objectively, the pain inflicted by the prison official must be
“sufficiently serious” to offend “contemporary standards of decency.” Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011). Thus, the nature and extent of a
prisoner’s injury may be indicative of the amount of force applied. Hudson, 503
U.S. at 9.
The subjective component looks to the state of mind of the prison official.
Moore, 2 F.3d at 700. The question “ultimately turns on ‘whether the 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. (quoting Whitley, 475 U.S.
at 321). To evaluate the prison official’s state of mind, a district court must
consider the need for application of force, the relationship between that need and
the amount of force used, the threat reasonably perceived by the responsible
-31-

officers, and any efforts made to temper the severity of a forceful response.
Hudson, 503 U.S. at 7 (citation omitted); see also Brooks v. Kyler, 204 F.3d 102,
106 (3rd Cir. 2000) (listing same criteria); Baldwin v. Stalder, 137 F.3d 836, 840
(5th Cir. 1998) (same). When considering such claims, the reasonableness of a
particular use of force is often dependent upon factual 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 v. Connor, 490 U.S. 386, 396–97 (1989).
In his Response, Perry does not specifically state that Altizer pushed him
and yanked his handcuffs. Instead, his description is, at best, ambiguous. A fair
reading of Perry’s description of the alleged incident suggests that another
unidentified USP-McCreary officer pushed him and yanked his handcuffs, and
that Altizer had merely “accompanied” that unidentified officer. To the extent the
Perry is specifically alleging that Altizer pushed him against the wall and yanked
his handcuffs, he fails to allege facts that create a genuine issue of material fact
regarding his excessive force claim.
Under the objective prong of the Eighth Amendment excessive force
inquiry, Perry’s allegation that he was pushed and that his hand cuffs were
“yanked upward” does not describe physical contact that could be considered as
sufficiently serious to offend contemporary standards of decency. As noted, in
evaluating an Eighth Amendment excessive force claim, the extent of the alleged
injury can provide some indication of the amount of force applied. Wilkins, 130 S.
Ct. at 1178. Here, Perry alleges that as a result of this alleged contact, he suffered
-32-

a “sore shoulder.”

But other than his own self-serving allegations and

conclusions, he offers no other independent evidence showing that his sore
shoulder required medical treatment or that after the alleged contact, he suffered
any physical problems. “Not 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, 1031 (2d Cir. 1973). The Supreme
Court has cited Johnson as authority for the proposition not every “malevolent
touch” by a prison guard gives rise to a federal cause of action. Hudson v.
McMillian, 503 U.S. 1, 9 (1992) (citing Johnson, 481 F.2d at 1031). “The Eighth
Amendment's prohibition of ‘cruel and unusual’ punishments necessarily excludes
from constitutional recognition de minimis uses of physical force, provided that
the use of force is not of a sort repugnant to the conscience of mankind.” Id. (some
internal quotation marks omitted).
The subjective prong of an Eighth Amendment excessive force inquiry
requires the Court to determine if Altizer’s alleged use of force on June 27, 2014,
was carried out “maliciously and sadistically,” rather than as part of “a good-faith
effort to maintain or restore discipline.” Wilkins, 130 S. Ct. 1180; Hudson, 503
U.S. at 7. But based on the facts presented here, the Court must conclude that any
use of force applied to Perry on that date was undertaken in a good-faith effort to
either maintain or restore discipline.
Fowler states that, on June 27, 2014, he discovered a homemade weapon in
Perry’s cell and ordered Perry to be placed in the SHU pending the outcome of a
-33-

disciplinary investigation. [Fowler Decl., Record No. 53-5, ¶ 3] Both Fowler and
Altizer state that when Perry arrived in the SHU, he was ordered to submit to a full
visual search, but Perry refused to comply with that directive. [Record No. 53-6, ¶
4; Record No. 53-5, ¶ 4] Altizer states that that Perry had a history of possessing
weapons and when Perry arrived in the SHU, he was demonstrating a poor
attitude. [Record No. 53-6, ¶ 4] Both Altizer and Fowler testify that, based on
these considerations, a calculated use of force team was needed to place Perry in
hard ambulatory restraints until he could display calm behavior for an extended
period of time. [Record No. 53-6, ¶ 4; Record No. 53-5, ¶ 4] Thus, the calculated
force, as described in 28 C.F.R. § 552.22, Principles governing the use of force
and application of restraints;8 and BOP PS 5566.06, Use of Force and Application
of Restraints (Nov. 30, 2005) (referencing 28 C.F.R. § 552.20) was used on Perry.
Altizer’s description of Perry’s criminal history is accurate.

Perry is

currently serving an aggregate 675-month sentence, which includes a 41-month
prison term for Armed Bank Robbery in violation of 18 U.S.C. § 2113(A), an 87month prison term for Using and Carrying a Firearm During and in Relation to a
Crime of Violence in violation of 18 U.S.C. § 924(c), a 210-month prison term for
Assaulting a Federal Law Enforcement Officer in the Performance of Official
Duties and Aiding and Abetting in violation of 18 U.S.C. §§ 111(A)(1) and (B)
and 18 U.S.C. § 2, and a 15-month prison term for Inmate in Possession of a
8

28 C.F.R. § 552.23, Confrontation avoidance procedures, identifies the steps which the
ranking custodial officials must take before resorting to use of force.

-34-

Prohibited Object in violation of 18 U.S.C. § 1791(A)(1).9 [Record No. 53-2, ¶ 3;
see also, “Inmate Data,” Record No. 53-2, pp. 6-11.] Perry’s criminal history
unquestionably involves not only possession of weapons both in and out of prison,
but also an assault on a prison guard.
Weapons unquestionably pose a threat to the safety and security of both
inmates and staff members. In situations where weapons have been discovered in
a prisoner’s cell, prison officials do not always have the luxury of time to ponder
the full extent to which a prisoner might present a more serious threat to the
institution or the people in it, especially when that prisoner was previously
convicted of possessing a prohibited object in a federal prison and assaulting a
prison official.
Altizer also attached to his Declaration a Memorandum to USP-McCreary
Captain “C.” Marauka which he noted that Perry’s security threat group status was
“Assault-Correctional Staff and Sovereign Citizen.”

[Record No. 53-6, p. 4]

Neither Altizer nor Fowler could know with certainty whether Perry was
9

On September 17, 2007, Perry, then an inmate at the USP-Big Sandy in Inez,
Kentucky, was involved in a prison fight with three other inmates and three prison
guards. During the assault another inmate handed Perry a “shank.” The video shows
Perry placing that object on the ground nearby before entering the fight. [Id. at 2-3] The
jury found Perry guilty of forcibly assaulting, or aiding and abetting the assault of, prison
officers and inflicting bodily injury on them in violation of 18 U.S.C. § 111(a), and with
knowingly possessing a prohibited object intended to be used as a weapon, in violation of
18 U.S.C. § 1791(a)(2),(b)(3). Perry received a 225-month prison sentence which runs
consecutively to his earlier federal sentences for armed bank robbery and illegal firearm
uses. See United States v. Oceanus Perry, No. 7:07-CR-23-GFVT-EBA-4 (E.D. Ky.
2007). The Sixth Circuit affirmed Perry’s conviction and sentence. [Record No. 291,
therein; see United States v. Oceanus Perry, No. 08-6219, 401 F. App’x 56 (6th Cir. Nov.
4, 2010)].

-35-

concealing contraband or a weapon on or in his person, or whether Perry might
assault one of them, as he had assaulted a USP-Big Sandy guard in 2007. Altizer
testifies that, because Perry was exhibiting a poor attitude, he was ordered to
submit to a visual search. When Perry refused to comply, he was placed in
restraints according to BOP PS 5566.06.
The BOP authorizes the use of force: (i) when prison officials are unable to
gain control of an inmate; (ii) to protect and ensure to protect and ensure the safety
of inmates, staff and others; (iii) to prevent serious property damage; and (iv) to
ensure institution security and good order. See 28 C.F.R. § 552.22, Principles
governing the use of force and application of restraints; see also BOP PS 5566.06,
Use of Force and Application of Restraints (Nov. 30, 2005) (referencing 28 C.F.R.
§ 552.20).
The “Program Objectives” of PS 5566.06 provide as follows:
a. Force will ordinarily be used only when attempts to gain
voluntary cooperation from the inmate have not been successful.
b. When force is used, it will be only the amount of force required
to subdue an inmate, or preserve or restore institution security and
good order.
c. Confrontation avoidance techniques will be used when feasible
to avoid calculated use of force situations.
BOP PS 5566.06, Page 2. This Program Statement authorizes the use force when
prison officials are attempting to enforce institutional regulations. See BOP PS
5566.06, Principles Governing the Use of Force and Application of Restraints, P.
6. The section of that Program Statement entitled “Types of Force,” (referencing
-36-

28 C.F. R. § 552.21) provides, “[a]lthough this is not always possible, staff must
use common sense and good correctional judgment in each incident to determine
whether the situation allows for the implementation of calculated or immediate use
of force procedures.” Id., p. 4. Thus, the BOP correctional officers must employ
their judgment and “common sense” in deciding whether an immediate or
calculated use of force is warranted, and that judgment must be evaluated on a
case-by case basis. See Kaufman v. United States, 84 F. Supp.3d 519, 528-29 (S.D.
W.Va. Jan. 7, 2015) (observing in an FTCA action that that the BOP’s regulations
governing “Use of Force” set forth in 28 C.F.R. § 552.22 et seq., “… do not
prescribe a course of conduct, but instead allow BOP staff to determine when force
is necessary and the appropriate extent of that force, taking into account the
circumstances of each specific situation,” and that “… 28 C.F.R. § 552.20 granted
Officer Baynard the discretion to determine that force was appropriate and 28
C.F.R. § 552.22 granted Officer Baynard discretion to determine the necessary
force to bring plaintiff back under control.”)
The use of calculated force as described in 28 C.F. R. § 552.20 and BOP PS
5566.06 necessarily implies that some degree of physical force will be employed
to enable prison officials to gain control of an inmate. Clearly, if a prisoner
voluntarily submitted to correctional orders and instructions, no use of force of
any kind would be required.
Perry offers no competent evidence, other than his own self-serving,
subjective allegation that the “force” applied to him was excessive.
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In

determining whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm,” one court has observed
that “… even if we concede [that an inmate] has established at most that prison
officials over-reacted to the disturbance that he caused ..., any such over-reaction
would still fall short of supporting a finding that prison officials acted ‘maliciously
and sadistically to cause harm.’” Fuentes v. Wagner, 206 F.3d 335, 346 (3d Cir.
2000).
“Judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight,” it was reasonable for Fowler and Altizer
to use the discretion afforded them and conclude that the calculated use of force
was required. Other district courts, presented with similar claims asserted by
federal prisoners who displayed aggressive behavior, have held that the use of
calculated and/or immediate force pursuant to BOP PS 5566.06 was warranted and
that the amount of force employed was not excessive. See e.g., Ziddell v. Morris,
No. 4:11-CV-845-A 2013 WL 704325, at *5 (N.D. Tex. Feb. 26, 2013) (“Given
plaintiff's disruptive and aggressive conduct, the potential was great that plaintiff
could continue to disrupt the unit or cause serious harm to himself or others.
Under these circumstances it was reasonable for Morris and Brown to use the
discretion afforded them and conclude that an immediate (rather than calculated)
use of force was required.”); McCullon v. Saylor, No. 3:12-CV-445, 2013 WL
1192778, at *18 (M. D. Pa. Mar. 4, 2013) (granting summary judgment against
prisoner who alleged excessive force against prison officials who applied by
-38-

calculated force pursuant to BOP policy); Landor v. Bledsoe, No. 1:11-CV-759,
2012 WL 6864999, at *16 (M. D. Pa. Dec. 11, 2012); Abdullah v. Seba, No. 3:13CV-1227, 2014 WL 4828222, at *13 (M. D. Pa. Sept. 29, 2014) (granting
summary judgment and finding no Eighth Amendment violation where the use of
restraints was both reasonable and necessary in light of the prisoner’s threatening
behavior).
The Supreme Court has explained that avoiding potential danger within the
prison and maintaining safety are penological objectives which “are peculiarly
within the province and professional expertise of corrections officials, and, in the
absence of substantial evidence in the record to indicate that the officials have
exaggerated their response to these considerations, courts should ordinarily defer
to their expert judgment in such matters.” Jones v. North Carolina Prisoners’
Labor Union, Inc., 433 U.S. 119, 127 (1977); Bell v. Wolfish, 441 U.S. 520, 54748 (1979); Ward v. Dyke, 58 F.3d 271, 273 (6th Cir. 1995) The Supreme Court
has also observed that prisons present an “ever-present potential for violent
confrontation.” Whitley, 475 at 321 (1986) (quoting Jones, 433 U.S. at 132). See
also Wolff v. McDonnell, 418 U.S. 539, 561-62 (1974) (noting that prisons are
populated by violent offenders, causing unremitting tension among inmates and
between inmates and guards). Protecting prison security is central to all other
correctional goals. Thornburgh v. Abbott, 490 U.S. 401, 415 (1989); Meadows v.
Hopkins, 713 F.2d 206, 209-10 (6th Cir. 1983).

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Further, the time that Perry spent in ambulatory restraints between 9:00
p.m. on June 27 2014, and 11:00 a.m. on June 28, 2014, does not violate the
Eighth Amendment’s prohibition against cruel and unusual punishment.

See

Hunter v. Bledsoe, No. 10-CV-927, 2010 WL 3154963 (M.D. Pa. Aug. 9, 2010)
(upholding ambulatory restraints used for 24 hours); Holley v. Johnson, No. 08CCV-629, 2010 WL 2640328 (W.D. Va. June 30, 2010) (upholding ambulatory
restraints used for 48 hours); Zimmerman v. Schaeffer, 654 F.Supp.2d 226, 232
(M.D. Pa. 2009) (upholding 19 hours or more in restraint chair); Moore v. Miller,
No. 7:08-CV-614, 2009 WL 113258 (W.D. Va. Jan.15, 2009) (26 hours); Keyes v.
O’Brien, No. Civ. A. 7:06-CV-437, 2006 WL 2125912 (W.D. Va. July 27, 2006)
(no Eighth Amendment violation where prisoner placed in ambulatory restraints
for 30 hours); Garraway v. United States, No. 04–CV–01049, 2006 WL 3054606,
at *8 (D. Colo. July 24, 2006) (upholding 50 hours in ambulatory restraints).
Perry states in his unsworn Response that he was kept in “restraints” from
June 27, 2014, to June 30, 2014, but he offers no other competent evidence to
substantiate that conclusory, self-serving allegation.

[Record No. 60, p. 3]

Conversely, Fowler has submitted the BOP’s official records which reflect that
Perry was held in ambulatory (ankle) restraints for 14 hours, not three (3) days.
Those official record entries were made by Fowler and the other prison lieutenants
as they conducted the eight separate “two-hour” checks on Perry pursuant to BOP
policy. [Record No. 53-5, pp. 5-7] Those entries document that Fowler removed

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Perry’s ambulatory restraints at 11:10 a.m. on June 28, 2014, after a period of
approximately fourteen hours.
The BOP’s records have been properly authenticated and constitute
competent evidence regarding the amount of time Perry spent in ambulatory
restraints. Perry’s unsupported and conclusory assertion that the defendants have
altered or fabricated the BOP’s official records regarding either the amount of time
that he was held restraints or the status reports made while he was restrained is
insufficient to counter the defendants’ evidence. Again, conclusory allegations are
not evidence and are not sufficient to overcome a properly supported motion for
summary judgment. Miller, 72 F. App’x at 380; McDonald, 898 F.2d at 1162.
Based on the authorities cited above, keeping an inmate in ambulatory restraints
for fourteen hours does not violate the Eighth Amendment’s prohibition against
cruel and unusual punishment. Altizer is entitled to summary judgment regarding
Perry’s Eighth Amendment excessive force claim.
4.

Eighth Amendment Deliberate Indifference Claims
Against Lt. Fowler and Nurse Sumner

Perry claims that Lt. Fowler and Nurse Sumner were deliberately
indifferent to his serious medical needs because they failed to respond to his
complaint that his wrist restraints were too tight and were causing him pain.
Fowler and Sumner contend that Perry has failed to satisfy either of the elements
of an Eighth Amendment deliberate indifference claim with respect to this
allegation.
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Again, the Eighth Amendment prohibits prison officials from acting with
deliberate indifference to a prisoner’s objectively serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 106 (1976). A deliberate indifference claim has both an
objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834
(1994); Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). Under the
objective component, “the plaintiff must allege that the medical need at issue is
‘sufficiently serious.’” Id. Under the subjective component, “the plaintiff must
allege facts which, if true, would show that the official being sued subjectively
perceived facts from which to infer substantial risk to the prisoner, that he did in
fact draw the inference, and that he then disregarded that risk.” Id.
Perry has failed to demonstrate through competent evidence that he
suffered a serious injury (required under the objective prong of an Eighth
Amendment deliberate indifference analysis) or that Fowler and Sumner were
deliberately indifferent to his medical needs (required under the subjective prong
of an Eighth Amendment deliberate indifference analysis).

Both Weiss and

Fowler testify that, pursuant to BOP policy, “Lieutenant Checks” were conducted
on Perry every two hours to assess his condition in light of the restraints applied.
These checks began on June 27, 2014, at 9:10 p.m., occurred again at 11:10 p.m.,
and continued through June 28, 2014, at 1:10 a.m., 3:10 a.m., 5:10 a.m., 7:10 a.m.,
and 9:10 a.m. [Record No. 53-5, ¶¶ 5-6]. On June 28, 2014, Fowler himself
checked Perry’s restraints at 9:10 a.m., and 11:10 a.m. [Id., ¶ 6]

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During the 9:10 a.m. check on June 28, 2014, Perry “… continued to refuse
to submit to a visual search and continued to display a poor attitude.” Fowler
determined that Perry, therefore, should remain in ambulatory restraints. [Id., ¶ 7]
Fowler states that at 11:10 a.m., Perry agreed to submit to a visual search and his
ambulatory restraints were removed. [Id.] Fowler further states that he did not
observe any injury to Perry’s wrists, and that it did not appear that the wrist
restraints had been applied in a manner that restricted Perry’s circulation. [Id., ¶
7]

Fowler explains that he is not a trained medical professional and is not

classified as such in his position with the BOP. As a result, he relied on the
judgment of the prison’s medical providers regarding all medical issues or
concerns.
Nurse Sumner shares Fowler’s description of Perry’s status while he
remained in restraints, stating that the prison’s medical staff monitored and
evaluated Perry’s wrists twice within an eight hour shift as required by BOP PS
5566.06, and that those checks occurred on June 27, 2014 at 9:10 pm (she
performed that check herself) and the next day, June 28, 2014, at 5:40 a.m., 7:00
a.m., and at 8:55 a.m. [Record No. 53-7, ¶¶ 5-6] Nurse Sumner states that when
she and the other medical staff members checked Perry, he had “positive pulses,”
his vital signs were normal, and his circulation showed no signs of being
compromised. [Id., ¶¶ 6-7] Nurse Sumner testifies that when she monitored Perry
at 9:10 p.m. on June 27, 2014, she observed no injuries to Perry’s wrists; Perry
denied any complaints of pain or injuries; and that the restraints were adequately
-43-

positioned because she could place a finger between the restraint cuff and Perry’s
wrist. [Record No. 53-7, ¶ 4; see also, other medical reports from June 27-28,
2014, Record No. 53-7, pp. 7-8]
Further, in the “Clinical Health Services Encounter” record of June 27,
2014, the “Cause of Injury” section of that report states: “Inmate denies injuries.”
[Record No. 53-7, p. 4]. The “Assessment” section of that same report states:
Inmate denied any pain or injuries. Upon visual assessment no
injuries noted restraints able to place finger between cuff and
inmates wrist. Good Circulation noted. Positive pulses noted. Vital
signs WNL [within normal limits]
Id.
Perry did not report to the medical staff that he was experiencing numbness
and tingling in his right hand which he attributed to the wrist restraints until July
16, 2014 (over two weeks after the incident of June 27-28, 2014). [Record No.
53-7, p. 9, “Subjective” complaint] Perry filed this Bivens action on July 16,
2014. He contends in his Response [Record No. 60] that Fowler and Sumner: (i)
refused to provide him with medical treatment; (ii) delayed providing him with
medical treatment; and (iii) were deliberately indifferent to his serious medical
needs. He further asserts that Nurse Sumner made false statements about the
condition of his wrists in both the prison’s official medical reports and in her
Declaration filed in this action.
To determine if a plaintiff has a sufficiently serious medical need, courts
have taken two nonexclusive paths. A medical need is sufficiently serious if it is
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“one that has been diagnosed by a physician as mandating treatment or one that is
so obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir.
2004) (quoting Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir.
1990) (citing Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d
326 (3d Cir. 1987))). Alternatively, a medical need is sufficiently serious if a
plaintiff “place[s] verifying medical evidence in the record ... establish[ing] the
detrimental effect of the delay in medical treatment.” Napier v. Madison Cnty.,
238 F.3d 739, 742 (6th Cir. 2001) (quoting Hill v. DeKalb Reg’l Youth Det. Ctr.,
40 F.3d 1176, 1188 (11th Cir. 1994), overruled in part on other grounds by Hope
v. Pelzer, 536 U.S. 730 (2002)); Blackmore, 390 F.3d at 895 (citing Napier)
(“Napier applies where the plaintiff’s ‘deliberate indifference’ claim is based on
the prison’s failure to treat a condition adequately, or where the prisoner’s
affliction is seemingly minor or non-obvious.”).
Perry presents no competent evidence as required by Napier showing that
he suffered an injury that could objectively be considered as sufficiently serious
under the case law that governs Eighth Amendment deliberate indifference claims.
In his unsworn Response, he asserts his own subjective claims that he experienced
pain, but he produced no independent medical proof to substantiate that he
sustained a serious injury or suffered from a sufficiently serious condition under
the Eighth Amendment.

Again, Perry broadly challenges the accuracy and

truthfulness of the prisons’ official two-hour lieutenant check records and its
-45-

related medical records, claiming that those records and Nurse Sumner’s sworn
Declaration were materially altered or fabricated, but he offers only speculation
and his own self-serving conclusions.
The defendants have submitted properly authenticated official two-hour
lieutenant check records documenting Perry’s physical status during the time that
he was held in restraints, and those records do not reflect that the lieutenants
observed any problems that indicated medical treatment was needed. They also
submit Perry’s medical records showing that he did not complain of any problems
related to his wrists or circulation until over two weeks, on July 16, 2014, the date
on which Perry filed his Bivens complaint.
Contrary to the evidentiary requirements set forth in Napier which controls
cases in which the plaintiff does not suffer from an obvious condition or injury,
Perry has produced no medical evidence that his wrist restraints caused him to
suffer or experience a serious medical need. Perry submits the affidavit of Joshua
Meregildo, another federal prisoner, who states that on July 7, 2014 (more than a
week after the events alleged in Perry’s Complaint), he observed wounds on Perry
wrists, and that on July 7, 2014, Perry told him that his wrist wounds were painful.
[Record No. 60-1, p. 6, ¶ 5] Inmate Meregildo is not a medical professional
qualified to express opinions regarding Perry’s medical condition.

Perry has

produced no consultation or examination notes, or any other medical reports,
suggesting that he suffered actual harm due to the alleged denial of medical
treatment. And he certainly offers nothing to suggest that he currently suffers any
-46-

adverse medical effects caused by the restraints.

The only medical proof

introduced into this record was submitted by the defendants, in the form of Nurse
Sumner’s Declaration and Perry’s medical records attached thereto.
But even assuming that Perry experienced some minor irritation or
temporary discomfort from the wrist restraints, that condition would be, at best,
classified as a de minimis injury. Prison medical and correctional staff constantly
monitored Perry’s wrist for any possible circulation impairment. During this time,
Perry did not express any complaints about his wrists or medical status. Perry’s
claims are similar to those asserted by another prisoner in Morva v. Johnson, No.
7:09-CV-515, 2011 WL 2420650 (W.D. Va. Aug. 4, 2011). In that action, the
prisoner-plaintiff sued a city jail and its various officers, challenging his placement
in a restraint chair and alleging that he suffered severe medical complications
stemming from the episode. The district court found no constitutional violation.10

10

In Morva, the district court analyzed the plaintiff’s medical claim, which
stemmed from the application of wrist restraints, as follows:
Furthermore, plaintiff did not experience anything more than a de minimis
injury despite his allegation of “severe pain” from the reduced blood
circulation…. The medical record shows that medical staff monitored
plaintiff's circulation every thirty minutes between 2:20 p.m. and 10:20
p.m., and he did not complain about his restraints, circulation, or pain
beyond back discomfort. Even during the night-shift before medical
monitoring stopped, plaintiff does not allege he told anyone about the
“severe pain” despite his ability to sing “very loudly.” The alleged
discomfort caused by the lack of circulation in his legs was temporary and
a de minimis result. Accordingly, the defendants are entitled to qualified
immunity because plaintiff fails to establish a constitutional violation and
the unlawfulness of using the restraint chair was not objectively apparent
at that time.

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The Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), provides, in
relevant part, that “[n]o Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury....” The
physical injury required under § 1997e(e) for a claim under 42 U.S.C. § 1983
“need not be significant, but it must be more than de minimis for an Eighth
Amendment claim to go forward.” Jarriett v. Wilson, 162 F. App’x 394, 401 (6th
Cir. 2005) (collecting cases). Thus, any discomfort, pain, or problem which Perry
may have temporarily sustained was, at best, de minimis.
Even assuming that Perry has demonstrated the existence of a sufficiently
serious medical need or condition which satisfies the objective prong of the Eighth
Amendment’s deliberate indifference analysis, he has nevertheless failed to satisfy
the subjective prong of the analysis. Perry has not demonstrated that Fowler and
Nurse Sumner were deliberately indifferent to, or maliciously and sadistically
ignored his complaints about, his medical needs.
Perry’s Eighth Amendment deliberate indifference claims against Fowler
suffer a significant defect in that Fowler is not a medical professional. Fowler
does not possess medical training. He is a correctional officer, not a medical
provider. As a result, he relied on the medical staff to assess Perry’s physical
condition. [Record No. 53-5, pp. 2-3, ¶ 8]. Perry offers no proof to contradict
Id. at *7.

-48-

Fowler’s statement that he is not a medical professional qualified to make medical
decisions.
Based on his uncontroverted sworn statement, Fowler was entitled to rely
on the judgment of medical professionals in the assessment and treatment of
Perry’s medical needs.

Harrison v. Ash. 539 F.3d 510, 518 (6th Cir. 2008)

(holding prison officials “were entitled to rely upon the medical treatment of CMS
nurses once they obtained medical care for [the prisoner].”); Berry v. Peterman,
604 F.3d 435, 440 (7th Cir. 2010) (“As a nonmedical administrator, [the
defendant] was entitled to defer to the judgment of jail health professionals as long
as he did not ignore the plaintiff.”); Johnson v. Doughty, 433 F.3d 1001, 1011–12
(7th Cir.2006) (“[a] nonmedical prison official ... cannot be held ‘deliberately
indifferent simply because [he] failed to respond directly to the medical
complaints of a prisoner who was already being treated by the prison doctor.”);
Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004) (“If a prisoner is under the care
of medical experts ... a non-medical prison official will generally be justified in
believing that the prisoner is in capable hands.”). Summary judgment will be
entered in Fowler’s favor regarding Perry’s Eighth Amendment claims alleging
deliberate indifference to his medical needs.
Perry’s Eighth Amendment deliberate indifference claims against Nurse
Sumner also fail under the subjective prong of the deliberate indifference analysis.
Again, the various official reports submitted by Fowler and Nurse Sumner
document that: (1) both correctional officers (by lieutenants, every two-hours) and
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the medical staff (twice during an eight hour shift) checked Perry’s wrists
according to the BOP’s time-line requirements; (2) Nurse Sumner could place her
finger between Perry’s wrist and the restraint, which signaled no compromise or
impairment to Perry’s blood flow/circulation; (3) Perry manifested no objective
signs of distress at any time between June 27-28, 2014; (4) Perry verbalized no
complaints of pain or distress between June 27-28, 2014; (5) Perry’s vital signs
were within normal range while he remained in restraints between June 27-28,
2014; and (6) Perry did not report to the medical department complaining about
his wrists/circulation issues until July 16, 2014, the date on which he filed his
Bivens complaint. The Court rejects as insufficient Perry’s bald, self-serving, and
conclusory assertion [Record No. 60] that Nurse Sumner materially altered or
falsified either her own sworn Declaration [Record No. 53-7, pp. 1-3] or the seven
pages of authenticated records attached to it that document Perry’s physical status
and medical evaluations.
During the fourteen-hour period on June 27-28, 2014, Perry was properly
evaluated and monitored by various USP-McCreary lieutenants and by Nurse
Sumner.

He was not denied medical treatment, and Nurse Sumner was not

deliberately indifferent to his serious medical needs. See McCullon, No. 3:12-CV445, 2013 WL 1192778, at *19 (M. D. Pa. Mar 4, 2013) (finding no deliberate
indifference where restraints were employed for a limited amount of time due to
the prisoner’s violent behavior; prisoner’s restraints and medical needs were

-50-

closely monitored between September 6-7, 2010; and the prison’s medical staff
observed no medical need to remove restraints).
Perry offers the affidavit of Inmate Meregildo who claims that on July 7,
2014, Nurse Sumner ignored Perry’s medical complaints about his wrists and
refused to provide Perry with any medical treatment. [Record No. 60-1, pp. 5-6]
Yet, in his Complaint filed on July 16, 2014 [Record No. 1], Perry did not allege
that Nurse Sumner denied him medical treatment on July 7, 2014. The only facts
that Perry alleged in relation to Nurse Sumner were contained in his detailed
version of the alleged events of June 27-28, 2014. See Record No. 1, pp. 7-11, ¶¶
48-82. In paragraphs 79-80 of the Complaint, Perry described the alleged events
of June 28, 2014, and his interactions on that date with Lt. Fowler and another
USP-McCreary employees whom he identified as “Nurse Stevens.” [Id., p. 10, ¶¶
79-80] Still discussing the alleged events of June 28, 2014, Perry stated:
Later that day, during PM SHU pill distribution, Inmate Perry
showed Nurse Sumer [Sic] his wrists and complained of loss of
feeling in his right wrists, but Nurse Sumer [sic] refused treatment
and refused to give inmate a medical request form.
[Id. p. 10 ¶ 81 (emphasis in bold added)]
In his Complaint, Perry did allege that while he remained confined in the
SHU between June 27, 2014, and July 4, 2014, several USP-McCreary officials
denied him toilet paper, hygiene supplies, change of clothing and a shower. [Id.,
p. 11, ¶ 83] But Perry did not allege in his July 16, 2104, Complaint that Nurse
Sumner denied him medical treatment on July 7, 2014.
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Ignoring the glaring inconsistencies in Perry’s allegations that Nurse
Sumner was deliberately indifferent to his medical needs, Perry merely challenges
the nature and extent of medical care which he received from Nurse Sumner.
However, a prisoner’s difference of opinion regarding diagnosis or treatment also
does not rise to the level of an Eighth Amendment violation. Estelle v. Gamble,
429 U.S. 97, 107 (1976). Further, where a prisoner has received some medical
attention but disputes the adequacy of that treatment, federal courts are reluctant to
second-guess the medical judgments of prison officials and constitutionalize
claims that sound in state tort law. Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th
Cir. 1976).
Finally, for a viable claim for the denial of medical care, the plaintiff must
allege that his health suffered as a consequence of such alleged denial. See
Thaddeus–X v. Blatter, 175 F.3d 378,401 (6th Cir. 1999). Perry offers no medical
proof of any kind showing that any alleged delay in receiving medical treatment
between June 27 and 28, 2014, worsened his alleged medical condition.
In his Response, Perry contends that summary judgment is not appropriate,
alleging that he complied with the demand for a visual search prior to the
application of calculated force; that he was in restraints for three days, from June
27-30, 2014, in violation of BOP policy; that the video surveillance tape will show
that complained about pain and other problem in his wrists; and that in both the
medical reports and her Declaration, Nurse Sumner made false statements about
his physical condition while he remained in wrist restraints. Under 28 U.S.C. §
-52-

1746, unsworn declarations have the same force and effect as a sworn affidavit
only if “subscribed by [the declarant], as true under penalty of perjury, and dated,
in substantially the following form: ... ‘I declare (or certify, verify, or state) under
penalty of perjury that the foregoing is true and correct. Executed on (date).
(Signature).’ ” 28 U.S.C. § 1746(2). See Whiteside v. Collins, No. 2:08-CV-875,
2012 WL 2374723, at *1 (S. D. Ohio June 22, 2012).
Perry’s response does not contain such a subscription and, therefore, does
not constitute a sworn affidavit under 28 U.S.C. § 1746(2). Thus, Perry has not
submitted competent evidence that contradicts the defendants’ sworn Declarations
and authenticated records, either as to his failure to properly and fully exhaust his
retaliation claims of May 1, 2014, or the events of June 27-28, 2014 (relative to
Perry’s claims of excessive force and deliberate indifference to his medical needs).
Perry’s unsupported and self-serving allegations are insufficient to defeat the
defendants’ motion for summary judgment supported by their sworn Declarations
and authenticated records attached thereto. See Garvey v. Montgomery, 128 F.
App’x 453, 462 n. 6 (6th Cir. 2005) (internal citations and quotation marks
omitted) (“This court has noted that a motion for summary judgment may not be
defeated by factual assertions in the brief of the party opposing it, since documents
of this nature are self-serving and are not probative evidence of the existence or
non-existence of any factual issues.”); Wolfe v. Village of Brice, Ohio, 37
F.Supp.2d 1021, 1026 (S.D. Ohio 1999) (citing Anderson 477 U.S. at 251)

-53-

(“[S]elf-serving affidavits, alone, are not enough to create an issue of fact
sufficient to survive summary judgment.”).
Perry did attach to his Response an affidavit in which he swore under oath
that he wanted to obtain discovery, i.e., audio and/or video surveillance and
various documents including defendants’ personnel files, in order to prove his
case, and that he “had been denied opportunity for discovery prior to defendants’
motion for summary judgment.” [Record No. 60-1] Perry stated that he believed
that the discovery he requested would prove that: (1) the prison staff knew about
the defendant’s propensity for “assaultive behavior and/or malicious and wanton
infliction of pain on inmates;” (2) the defendants failed to follow BOP policy
and/or that the prison’s institutional supplements were inadequate; and (3) the
defendants “were aware of and/or witnessed violation(s) of Plaintiff’s Eighth
Amendment rights and failed [] to intercede on behalf of Plaintiff/Inmate.” [Id., p.
2, ¶¶ 4-6]
A responding party may request additional discovery prior to a court
granting summary judgment. Federal Rule of Civil Procedure 56(d) provides that
if a party opposing the motion shows by affidavit that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may: (1) deny the
motion; (2) order a continuance to enable affidavits to be obtained, depositions to
be taken, or other discovery to be undertaken; or (3) issue any other order. Fed. R.
Civ. P. 56(d).

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The affidavit or declaration required by the rule must “indicate to the
district court [the party’s] need for discovery, what material facts it hopes to
uncover, and why it has not previously discovered the information.” Cacevic v.
City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (citing Radich v. Goode,
866 F.2d 1391, 1393–94 (3d Cir.1989). However, a request under Rule 56(d) may
be properly denied where the requesting party “makes only general and conclusory
statements regarding the need for more discovery,” Ball v. Union Carbide Corp.,
385 F.3d 713, 720 (6th Cir. 2004) (citing Ironside v. Simi Valley Hosp., 188 F.3d
350, 354 (6th Cir. 1999)), or where the affidavit “lacks ‘any details’ or
‘specificity.’” Id. (quoting Emmons v. McLaughlin, 874 F.2d 351, 357 (6th Cir.
1989)). Denial of a Rule 56(d) motion has been affirmed when the parties were
given insufficient time for discovery if “further discovery would not have changed
the legal or factual deficiencies.” Maki v. Laakko, 88 F.3d 361, 367 (6th Cir.
1996), cert. denied, 519 U.S. 1114 (1997). Finally, whether to grant a request for
additional discovery falls within the trial court’s discretion. Egerer v. Woodland
Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009).
Here, Perry’s affidavit lacks details or specificity regarding discovery that
would contradict the defendants’ argument that Perry failed to exhaust his
administrative remedies as to his retaliation claims and that the use of calculated
force on June 27, 2014, was necessary. Perry seeks only two specific items of
discovery which he claims are needed to contest their motion: (1) audio and video
footage of the use of force that was executed on June 27, 2014, to show that he
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“made complaints of injuries on camera” and that the “restraints were not
necessary and used as punishment;” and (2) disciplinary reports in defendants’
personnel files which would “establish a propensity for assaultive behavior.” [Id.]
The defendants correctly note that none of the items of discovery that Perry
has requested would contradict the following: (1) Perry failed to administratively
exhaust his retaliation claims between June 4-24, 2014, long before he was placed
in the SHU on June 27, 2014; (2) Perry has failed to demonstrate he suffered an
adverse action under a retaliation analysis; (3) Perry has not established Altizer
used excessive force against him on June 27, 2014, or that that the calculated use
of force applied to him on that date was excessive, given the defendants’
perception of his poor attitude and Perry’s prior history of assaulting a prison
guard; (4) any physical injury Perry sustained either while calculated force was
being applied to him, or during the 14 hours after he was placed in restraints, was,
at best de minimis and not sufficiently serious; (5) even if Perry’s injuries were
more than de minimis, the defendants were not deliberately indifferent to any
medical needs because they closely monitored Perry’s wrists between June 27-28,
2014; Perry did not complain of any injuries during that time-fame; and they
found no medically objective reasons to remove the restraints or to administer any
medical treatment to Perry. Thus, in the exercise of its discretion, the Court
determines that the discovery which Perry requests would not change the legal and
factual deficiencies of his case.

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5.

Assault Claim (State Tort Claim)/FTCA Claim Against
Lt. Altizer

Perry may not proceed with a state law tort claim against Altizer for alleged
assault. A Bivens civil rights action is the mechanism which enables a plaintiff to
sue a federal official who has allegedly violated the plaintiff’s federal
constitutional rights. Having dismissed all of Perry’s claims which implicate
federal question jurisdiction, this Court declines to exercise jurisdiction over any
state law claims asserted by Perry. See United Mine Workers of America v. Gibbs,
383 U.S. 715 (1966); Washington v. Starke, 855 F.2d 346, 351 (6th Cir. 1988) (“It
is a clear rule of this circuit that if a plaintiff has not stated a federal claim, his
pendant state law claims should be dismissed.”).
Further, to the extent that the defendants treat Perry’s assault claim against
Altizer claim as one falling under the FTCA, they correctly argue that any FTCA
claim is barred. When a tort claim is brought against a federal employee, the
Federal Employees Liability Reform and Tort Compensation Act of 1988,
commonly known as the “Westfall Act”, applies. See Pub. L. No. 100–694, §§ 5–
6, 102 Stat. 4563 (1988). The Westfall Act “empowers the Attorney General to
certify that the employee was acting within the scope of his office or employment
at the time of the incident ...” giving rise to the claim. Gutierrez de Martinez v.
Lamagno, 515 U.S. 417, 420 (1995) (quoting 28 U.S.C. § 2679(d)(1)). 11

11

In their Memorandum, the defendants state “[b]ecause Defendant Altizer was acting
within the scope of his employment at all times relating to Plaintiff’s claims, Plaintiff’s
state tort law claims against Altizer must be dismissed.” [Record No. 53-1, p. 24] It is

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Upon certification, the United States is substituted for the employee as a
defendant, and the claim is litigated under the FTCA and is subject to dismissal on
any basis applicable to FTCA claims. See 28 U.S.C. § 2679(d)(4) (providing that
the claims “shall be subject to the limitations and exceptions applicable to those
[FTCA] actions”); Dolan v. United States, 514 F.3d 587, 593 (6th Cir. 2008) (“[I]f
the defendant federal employee was acting in the scope of his or her employment,
substitution of the United States as defendant is appropriate and the district court
must assess the plaintiff's claims pursuant to the [FTCA] ... the case must be
dismissed for lack of jurisdiction.”); see also United States v. Smith, 499 U.S. 160,
166 (1991) (“[T]he FTCA [is] the exclusive mode of recovery for the tort of a
Government employee even when the FTCA itself precludes Government
liability.”). Any suit against the employee “arising out of or related to the same
subject matter” is precluded. 28 U.S.C. § 2679(b)(1), because the statute
effectively “shields federal employees from liability for common law torts
committed within the scope of employment.” Sullivan III v. Shimp, 324 F.3d 397,
399 (6th Cir. 2003). Perry’s state law tort claim of assault against Altizer is
therefore subject to dismissal because § 2679(b)(1) immunizes Altizer from such a
claim. See Hui v. Castaneda, 559 U.S. 799, 805-07 (2010); Rector v. United
States, 243 F. App’x 976, 978-79 (6th Cir. 2007); Dickson v. Wojcik, 22 F. Supp.
3d 830, 835-36 (W.D. Mich. 2014).
unclear when or where the Attorney General’s certification was filed, but the Court has
concluded that Altizer and the other defendants have demonstrated that the use calculated
force against Perry on June 27, 2014, was justified and necessary.

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Further the defendants correctly argue that, to the extent that his assault
claim falls under the FTCA, Perry cannot proceed with the claim because he did
not submit an FTCA administrative claim concerning the alleged assault of June
27, 2014. In his Declaration dated July 20, 2015, Billings states under oath that
Perry has submitted no FTCA administrative claim alleging that Altizer assaulted
him on June 27, 2014. [Record No, 53-2. P. 5, ¶ 12] And Perry offers no
competent evidence to contradict Billings’s sworn Declaration. Under 28 U.S.C. §
2675(a), “[a]n action shall not be instituted upon a claim against the United States
for money damages for injury… unless the claimant shall have first presented the
claim to the appropriate federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified or registered mail.” 28
U.S.C. § 2675(a). Suits filed prior to the completion of the FTCA administrative
process must be dismissed as premature. McNeil v. United States, 508 U.S. 106,
111-13 (1993); Cf. Solis-Caceres v. United States, No. 13-120-DLB, 2014 WL
1612693, at *2 (E.D. Ky. Apr. 22, 2014) Accordingly, Perry’s state law claim
alleging assault against Lt. Altizer will be dismissed for lack of subject-matter
jurisdiction.
V.
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
(1)

The “Motion to Dismiss, or in the Alternative, Motion for Summary

Judgment” filed by Defendants Leroy Chaney, Lieutenant at the USP-McCreary,
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Defendant Donald Weiss, Lieutenant at the USP-McCreary, Defendant John
Fowler, Lieutenant at the USP-McCreary, Defendant David Altizer, Lieutenant at
the USP-McCreary, and Defendant Stephanie Sumner, Nurse at the USPMcCreary [Record No. 53] is GRANTED.
(2)

This action is DISMISSED, with prejudice, and STRICKEN from

the Court’s docket.
This 29th day of February, 2016.

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