COLEMAN et al v. UNITED STATES OF AMERICA et al

Filing 105

MEMORANDUM. Signed by Judge C. Darnell Jones (EDPA), II on 5/26/2021. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DAVID COLEMAN
Plaintiff,

:

v.

:

UNITED STATES OF AMERICA; LT.
KENNAR1; and, JAMES GIBBS, PA2
Defendants.

CIVIL ACTION
NO. 1:15-1942

:

MEMORANDUM
Jones, II J.3
I.

May 26, 2021

Introduction
Plaintiff David Coleman commenced this action against Defendants alleging negligence

under the Federal Torts Claims Act,4 and Bivens5 violations on the bases of deliberate
indifference and excessive force under the Eighth Amendment. Plaintiff’s claims arise from an
incident in which a vent grate fell on his head in the shower while he was serving a sentence at
FCI Fort Dix. Defendants move to dismiss Plaintiff’s claims for lack of subject matter
jurisdiction. Alternatively, Defendants move for summary judgment on all of Plaintiff’s claims.

Although the caption of Plaintiff’s Second Amended Complaint names Lt. Kennar as a
defendant (ECF No. 21), said Defendant identifies himself as “Lt. Kenner” in the instant Motion
to Dismiss/for Summary Judgment. As such, for purposes of the instant discussion, the court
shall refer to this Defendant as Lt. Kenner.
2
Although the caption of Plaintiff’s Second Amended Complaint names James Gibbs as a
defendant (ECF No. 21), said Defendant identifies himself as “James Gibb” in the instant Motion
to Dismiss/for Summary Judgment. As such, for purposes of the instant discussion, the court
shall refer to this Defendant as James Gibb.
3
This matter was presided over by the Honorable Robert B. Kugler in the United States District
Court for the District of New Jersey until May 18, 2020, at which time the case was reassigned to
this Court for all further proceedings. (ECF No. 104.)
4
28 U.S.C.S. § 2671, et seq.
5
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971).
1

1

For the reasons set forth herein, Defendant USA’s motion to dismiss shall be granted, as shall
Defendants’ motion for summary judgment on Plaintiff’s deliberate indifference and excessive
force claims.
II.

Statement of Facts
Under the “Unit Rules” section of the FCI Fort Dix Admission and Orientation Inmate

Handbook, “[s]howers are closed for cleaning from 7:30 a.m. until 10:30 a.m. and closed daily
from 11:30 p.m. until 5:00 a.m.” (SUF ¶ 25; RSUF ¶ 25) (emphasis added). On the morning of
January 21, 2013, between the hours of 1:00 a.m. and 3:00 a.m., Plaintiff, an inmate at FCI Fort
Dix, was taking a shower when an object hit him on the head. (SUF ¶¶ 26, 45; RSUF ¶ 45; Defs.’
Mot. Summ. J., Ex. B 102:4-10.) Plaintiff remembers being hit on the head and then being
helped up by fellow inmate Tony Robinson. (SUF ¶¶ 28, 31; RSUF ¶¶ 28, 31.) Robinson, with
the help of another unidentified inmate, brought Plaintiff to the Housing Unit Officer on duty,
Officer Andrews. (SUF ¶¶ 33, 38; RSUF ¶¶ 33, 38.) Officer Andrews asked Plaintiff what
happened and Plaintiff responded, “I don’t know, something fell on my head in the shower.”
(SUF ¶ 34; RSUF ¶ 34.) Officer Andrews asked what fell on his head and Plaintiff said “it was a
grate.” (SUF ¶ 35; RSUF ¶ 35.) There is a vent located above the showerhead in the shower
where Plaintiff’s incident occurred. (SUF ¶ 37; RSUF ¶ 37.) When Officer Andrews saw
Plaintiff after the incident, he observed a small cut on his head but did not view Plaintiff’s injury
as an emergency (SUF ¶¶ 49-50; RSUF ¶¶ 49-50.) Officer Andrews went to the shower area after
Plaintiff’s incident, where he observed a vent cover on the floor. (SUF ¶ 55; RSUF ¶ 55.) The
vent’s screws appeared to be tampered with, which Officer Andrews stated was the likely cause
of its detachment. (Defs.’ Mot. Summ. J., Ex. C at 53:16-25; RSUF ¶56.) Inmates notoriously
used vents as hiding spots for contraband. (SUF ¶ 57; RSUF ¶ 57.)

2

After speaking with Officer Andrews about the incident, Plaintiff was transported from the
housing unit to the Lieutenant’s Office. (SUF ¶ 62; RSUF ¶ 62.) The Lieutenant on duty that
morning was Defendant Kenner. (SUF ¶ 75; RSUF ¶ 75.) After Plaintiff arrived at the
lieutenant’s office at approximately 3:00 a.m., Defendant Kenner called the on-call staff
physician, Nicoletta Turner-Foster, M.D., regarding Plaintiff’s incident. (SUF ¶¶ 80-81; RSUF
¶¶ 80-81.) Dr. Foster spoke with Plaintiff over the phone to diagnose him and instructed him to
go to Health Services for an evaluation during sick call. (SUF ¶¶ 82-83; RSUF ¶¶ 82-83.)
Defendant Kenner decided to keep Plaintiff in the office for observation until two nurses in the
Health Services Unit arrived to begin their shift at 6 a.m. (SUF ¶ 84; RSUF ¶ 84.)
At the Health Services Unit, Plaintiff was seen by Mid-Level Practitioner (MLP) Estella
Richardson at 6:19 a.m., at which time Plaintiff reported symptoms of feeling dizzy and heaving
throbbing head pain. (SUF ¶ 86; RSUF ¶ 86.) Plaintiff’s exam showed a “minimal abrasion on
parietal area.” (SUF ¶ 87; RSUF ¶ 87.) MLP Richardson noted “superficial abrasion on scalp”
and “poss. minor concussion on scalp” in the Health Problem Comment section of her report.
(SUF ¶ 87; RSUF ¶ 87.) In the Clinical Encounter note for Plaintiff’s visit, Richardson recorded
“abrasion on scalp was cleaned with betadine; no stitches required’” and she directed Plaintiff to
follow up at Sick Call as needed and return to Sick Call if not improved. (SUF ¶ 88; RSUF ¶ 88.)
Approximately one hour after Plaintiff had returned to his housing unit, the Health Services Unit
received a call stating Plaintiff was complaining of blurry vision, neck pain and headache. (SUF
¶ 90; RSUF ¶ 90.) The medical staff decided to transfer Plaintiff to St. Francis Medical Center to
rule-out an intercranial process. (SUF ¶ 92; RSUF ¶ 92.) On January 22, 2013, Plaintiff
underwent a “CT Head/Brain w/o Contrast Exam” and a report was prepared including the
following finding: “No CT evidence for acute intracranial hemorrhage or mass effect.” (SUF ¶

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93; RSUF ¶ 93.) Plaintiff also underwent a “CT Cervical Spine wo/ [sic] Contrast Exam” that
same day and a report was prepared with the following finding: “There is an age indeterminate
mild compression deformity of C6, predominantly involving the inferior endplate.” (SUF ¶ 94;
RSUF ¶ 94.) The next day, January 23, 2013, Plaintiff underwent an “MRI Cervical Spine w/o
Contrast Exam” and a report was prepared with the following finding: “The MRI is technically
slightly limited, but no evidence of abnormal signal is identified in the regional bone marrow
with attention to C6, suggesting that the mild compression of C6 is developmental or relates to
old trauma. The appearance of slight diminished statute of C6 is concordant with the recent CT.”
(SUF ¶ 95; RSUF ¶ 95.) The radiologist who performed the MRI further reported: “Mild
compression deformity of the C6 vertebral body concordant with recent CT. This appears to be a
chronic finding either reflecting old trauma or representing developmental variation. There is no
evidence of acute traumatic injury. There is subluxation and the cord demonstrates normal
morphology and signal characteristics.” (SUF ¶ 96; RSUF ¶ 96.) Plaintiff was discharged from
St. Francis Medical Center on January 25, 2013 with the following final diagnosis: “(1) Head
trauma; (2) Compression fracture deformity of the C6 spine; (3) Headaches.” (SUF ¶¶ 97-98;
RSUF ¶¶ 97-98.)
On January 26, 2013, Defendant Gibb, an EMT-Paramedic in the Health Services Unit at
FCI Fort Dix, received a radio call from the Housing Unit Officer that Plaintiff stated he could
not move the right side of his body. (SUF ¶¶ 100, 103; RSUF ¶¶ 100, 103.) Defendant Gibb
evaluated Plaintiff at Health Services where Plaintiff told Defendant Gibb that he was unable to
move his right arm and right leg, and that he deserved a bottom bunk/first floor pass because of
his neck. (SUF ¶¶ 104-105; RSUF ¶¶ 104-105.) Defendant Gibb recorded in his Clinical
Encounter Note that he saw Plaintiff move his right hand to take Tylenol from a bag and tense

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his right leg to put his boot on after the examination. (SUF ¶ 106; RSUF ¶ 106.) Dr. Chung, the
on-call staff physician, gave Defendant Gibb the following verbal orders concerning Plaintiff:
“(1) delete Decadron and begin 15 mg prednisone BID x 5 days; (2) allow bottom bunk for 30
days; no first-floor pass authorized because there were no clinical findings to allow a first-floor
pass.” (SUF ¶¶ 107-108; RSUF ¶¶ 107-108.)
On January 27, 2013, Defendant Gibb received another call about Plaintiff’s inability to
move the right side of his body and he went to examine Plaintiff in his housing unit. (SUF ¶¶
110-111; RSUF ¶¶ 110-111.) During the examination, Defendant Gibb rubbed the lateral side of
the sole of the right foot with a blunt instrument and observed Plaintiff’s toes “curve down and
inwards.” (ECF No. 87-5 at 21.) Defendant Gibb contacted Dr. Chung, who gave Defendant
Gibb verbal orders for no interventions or transport to the local hospital at that time. (SUF ¶¶
113-114; RSUF ¶¶ 113-114.) Dr. Chung gave those same orders to the Operations Lieutenant.
(SUF ¶ 115; RSUF ¶ 115.) During Defendant Gibb’s evaluation, Correctional Officer José Reyes
was securing Plaintiff’s property to move him from his cell when he found a piece of metal
fashioned into a weapon, sharpened to a point on one end, under Plaintiff’s locker. (SUF ¶¶ 116118; RSUF ¶¶ 116-118.) Officer Reyes wrote an Incident Report regarding his discovery of the
piece of metal and gave it to the Operations Lieutenant, Corey Kaough. (SUF ¶¶ 121-123; RSUF
¶¶ 121-123.) Lieutenant Kaough determined that Plaintiff should be placed in the Special
Housing Unit (SHU) for possession of a hazardous tool, pending an investigation by Special
Investigative Services (“SIS”). (SUF ¶ 127; RSUF ¶ 127.) Dr. Chung authorized Plaintiff’s
move, at which time Defendant Gibb and a correctional officer transported Plaintiff from his
housing unit to the Operations Lieutenant’s Office to speak with Lieutenant Kaough. (SUF ¶¶
129, 131; RSUF ¶¶ 129, 131.) Defendant Gibb and another officer then transported Plaintiff to a

5

cell in the SHU, during which time Defendant Gibb observed Plaintiff “lift[ing] his right arm up
and away from his body several inches to facilitate upper strap placement.” (SUF ¶ 132; ECF
No. 87-5 at 21.) Later, Defendant Gibb received a call advising him that Plaintiff was yelling and
demanding to be sent to the hospital. (SUF ¶ 133; RSUF ¶ 133.) Defendant Gibb discussed
Plaintiff’s demands with the on-call physician, who gave verbal orders for no interventions, no
transport to the hospital, and for Plaintiff to be seen by the Health Services Unit in the morning.
(SUF ¶¶ 134-135; RSUF ¶¶ 134-135.) The next morning, MLP José Ravago examined Plaintiff
and recorded that “Patient cannot move his RIGHT foot or toes; patient refers decreased
sensation on the lower extremity.” (SUF ¶¶ 137-138; RSUF ¶¶ 137-138.) Based upon this
determination, Plaintiff was sent to St. Francis Medical Center where he underwent the same
exams as his previous visit and the findings were consistent. (SUF ¶¶ 140-143; RSUF ¶¶ 140143.) On January 31, 2013, Plaintiff was discharged from St. Francis Medical Center with the
following comments on his discharge summary:
CBC including differential were essentially within normal limits. A
comprehensive metabolic profile was normal. The patient had a CT scan of the
head which did not show any acute injury. He also had an MRI of the cervical
spine which was read as stable, mild loss of height of the C6 vertebral body. This
is felt likely to either reflect old injury or be developmental. No findings to
explain the right-sided motor deficit. This is the conclusion of the radiologist.
(SUF ¶¶ 144, 146; RSUF ¶¶ 144, 146.)
III.

Standards of Review
a. Subject Matter Jurisdiction
A challenge to subject matter jurisdiction under Rule 12(b)(1) may take two forms: a

facial challenge or a factual challenge. If a facial challenge concerns an alleged pleading
deficiency, the trial court is restricted to a review of the allegations of the complaint and any
documents referenced therein. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008); Gould
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Elec. Inc. v. United States, 220 F.3d 169, 177 (3d Cir. 2000). When considering a facial
challenge, “the trial court must consider the allegations of the complaint as true.” Mortensen v.
First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
A factual challenge “concerns the actual failure of a plaintiff’s claims to comport
factually with the jurisdictional prerequisites.” CNA, 535 F.3d at 139 (internal quotation, citation,
and alterations omitted). If the challenge before the trial court is a factual challenge, the court
does not accord any presumption of truth to the allegations in the plaintiff’s Complaint, and the
plaintiff bears the burden of proving subject-matter jurisdiction. Id. With a factual challenge,
the court may weigh evidence outside the pleadings and make factual findings related to the
issue of jurisdiction. Id.; U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.
2007). “[T]he existence of disputed material facts will not preclude the trial court from
evaluating for itself the merits of the jurisdictional claims.” Mortensen, 549 F.2d at 891.
b. Summary Judgment
Under Federal Rule of Civil Procedure 56(a), a court shall grant summary judgment “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine [dispute] as to any material fact and that the
moving party is entitled to a summary judgment as a matter of law.” Celotex, 477 U.S. at 322;
Fed. R. Civ. P. 56(a). “If the moving party meets its burden, the burden shifts to the nonmoving
party to go beyond the pleadings and come forward with specific facts showing that there is a
genuine issue for trial.” Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (internal citations
and quotation marks omitted). Therefore, in order to defeat a motion for summary judgment, the
non-movant must establish that the disputes are both: (1) material, meaning concerning facts that
will affect the outcome of the issue under substantive law; and (2) genuine, meaning the

7

evidence must be such that a reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“Although the initial burden is on the summary judgment movant to show the absence of
a genuine issue of material fact, ‘the burden on the moving party may be discharged by
“showing”—that is, pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case’ when the nonmoving party bears the ultimate burden of
proof.” Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 193 (3d Cir. 2001) (quoting Celotex, 477
U.S. at 325). “[A] nonmoving party must adduce more than a mere scintilla of evidence in its
favor and cannot simply reassert factually unsupported allegations contained in its pleadings[.]”
Williams v. West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citation omitted). Accordingly,
summary judgment is mandated “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322. To that end, however, “conclusory,
self-serving affidavits are insufficient to withstand a motion for summary judgment.” Kirleis v.
Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009) (citing Blair v. Scott
Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002)) (internal quotation marks omitted). Instead,
an affiant must set forth specific facts that reveal a genuine issue of material fact. Id.
Finally, a court must “view the facts and any reasonable inferences drawn therefrom in
the light most favorable to the party opposing summary judgment.” InterVest, Inc. v. Bloomberg,
L.P., 340 F.3d 144, 160 (3d Cir. 2003). However, if a party fails to properly address another
party’s assertion of fact, a court may consider the fact undisputed and grant summary judgment.
See Fed. R. Civ. P. 56(e)(2)-(3).

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IV.

Discussion
A. Subject Matter Jurisdiction
“The United States has sovereign immunity from civil liability, except when it consents

to be sued.” McIntosh v. United States, No. 19-2018, 2021 U.S. App. LEXIS 3085, at *7 (3d
Cir. Feb. 4, 2021). The Federal Torts Claims Act (FTCA) limits the United States’ sovereign
immunity by allowing “suits against the United States for torts committed by ‘any employee of
the Government while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.’” S.R.P. ex rel. Abunabba v. United
States, 676 F.3d 329, 332 (3d Cir. 2012) (quoting 22 U.S.C.§ 1346(b)(1)). However, the FTCA
limits this liability by a discretionary function exception which provides that the Government
cannot be sued for claims “based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).
Courts applying the discretionary function exception are guided by the two-part test
established in United States v. Gaubert, 499 U.S. 315 (1991). First, the court must find that the
act in question “involves an element of judgment or choice.” Berkovitz by Berkovitz v. United
States, 486 U.S. 531, 536 (1988). There is no discretionary function if a “federal statute,
regulation, or policy specifically prescribes a course of action for an employee to follow.”
Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536). Second, if the challenged conduct
is found to be discretionary in nature, the court must determine “whether that judgment is of the
kind that the discretionary function exception was designed to shield.” Id. at 322-23. “Stated
another way, the discretionary function exception bars government liability if the challenged

9

action ‘involves the permissible exercise of policy judgment.’” Castillo v. United States, 166 F.
App’x 587, 588-589 (3d Cir. 2006) (quoting Berkovitz, 486 U.S. at 537).
Plaintiff herein alleges the BOP’s Federal Operations Manual (FOM) qualifies as a
“policy” such that it precludes the application of the discretionary function exception. In
particular, Plaintiff claims the FOM prescribes “specific requirements of ordinary diligence or
reasonable care for maintaining and repairing shower vent grates through routine reporting,
processing, executing, and documenting of Work Orders or Requests.” (Pl.’s Opp’n Summ. J. 6.)
This is not an accurate depiction of what the excerpt from the FOM—as provided by Plaintiff—
actually says. In particular, the FOM makes no mention of any “specific requirements of
ordinary diligence or reasonable care for maintaining and repairing shower vent grates[.]” (Pl.’s
Opp’n Summ. J. Ex. I.) The fact that Fort Dix Facility Manager Ronald Brooks testified that he
“understood that requests to replace missing shower-vents [sic] are categorized as minor work
orders” under the FOM is irrelevant to the question at hand. (Pl.’s RSUF ¶ 39.)
Moreover, Plaintiff does not identify any “mandatory government[al] duty” which
specifically prescribes a course of action for the BOP to follow with respect to the vents. See
Ryan v. United States, 233 F. Supp. 2d 668, 682 (D. N.J. 2002) (finding the government had
mandatory duties to conduct daily and weekly inspections as specified by contract provisions);
see also, S.R.P. ex rel Abunabba v. United States, 676 F.3d 329, 335 (3d Cir. 2012) (finding
National Park Service “[p]olicies do not specifically dictate the way in which park officials
should balance these [preservation of a park’s scenery and natural resources with public safety]
concerns or the specific actions that must be taken in response to particular problems.”).
In Merando v. United States, 517 F.3d 160, 163 (3d Cir. 2008), Plaintiff alleged the Park
Service was negligent in not finding and managing a dead tree that fell on Plaintiff’s car as he

10

was passing under the tree. Plaintiff argued the Park Service did not have discretion regarding
how it managed hazardous trees because it had a hazardous tree management plan. Id. at 168.
The court noted that the relevant inquiry was whether any federal statute, regulation or
administrative policy mandated the Park Service to “locate and manage hazardous tree in any
specific manner.” Id. (emphasis added) The court ultimately held that the pertinent statutes and
policies did not mandate “how the Government should locate or deal with hazardous trees” nor
did the Natural Resources Management Guidelines mandate “any particular methods of
hazardous tree identification or removal.” Id. at 167-70. Further, the court highlighted that
nothing required “park employees to inspect certain trees on certain days or remove a particular
number of trees per week.” Id. at 172. Accordingly, the method by which the Park Service
carried out such tree inspections fell within the discretionary function exception to the
government’s tort liability. Id.
In this case, there exists no federal statute, regulation or policy mandating specific action
by the BOP with regard to the inspection and maintenance of air vents. Instead, these tasks fall
within the discretion of prison officials who must weigh the necessity and frequency of said
inspections and maintenance against the limited resources available to them and the need to
maintain safety and order within the prison. As such, this Court finds vent inspections and
maintenance constitute discretionary conduct.
When discretionary conduct is found, the next prong requires the court to determine if
that conduct “is of the kind that the discretionary function exception was designed to shield.”
Gaubert, 499 U.S. at 322-23. The purpose of the discretionary function exception “is to ‘prevent
judicial second guessing of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.’” Id. at 323 (quoting

11

United States v. S. A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,
813 (1984)). Thus, the exception “‘protects only governmental actions and decisions based on
considerations of public policy.’” Id. (quoting Berkovitz, 486 U.S. 531, 537 (1988)).
“While federal law requires the Bureau of Prisons to ‘provide for the safekeeping, care,
and subsistence’ of all persons within its custody, 18 U.S.C. § 4042(a)(2), the statute leaves the
implementation of these duties to BOP officials’ discretion.” Acosta v. Schultz, Civil Action No.
12-6614, 2014 U.S. Dist. LEXIS 28531, at *27-28 (D. N.J. March 6, 2014). Inasmuch as the
inspection of more than 3,000 vents throughout FCI Fort Dix housing units and at least 5,000
more in non-housing units6—when weighed against the prison’s duty of “safekeeping, care, and
subsistence” of the inmates with limited staff and the fact that there had never been a reported
incident of injury from a falling vent in the past—mandates this Court to conclude the
discretionary function exception does apply. Accordingly, the government’s motion to dismiss
for lack of subject matter jurisdiction shall be granted.
B. Motion for Summary Judgment Regarding Defendants Kenner and Gibb
1. Bivens
42 U.S.C. § 1983 provides a cause of action against any “person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected” any person to the deprivation of any right
protected by federal law or the United States Constitution. Brown v. Philip Morris Inc., 250 F.3d
780, 800 (3d Cir. 2001). Under § 1983, an injured individual is entitled to “money damages if a
state official violates his or her constitutional right.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1854

6

(SUF ¶¶ 9-10.)
12

(2017). For federal officials, “[i]t is well established that liability under § 1983 will not attach for
actions taken under color of federal law.” Brown, 250 F.3d at 800.
While § 1983 protects against violations of constitutional rights at the hands of state
officials, the Supreme Court has recognized, in limited situations, a private cause of action
against federal officials. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 389 (1971). “A Bivens action, which is the federal equivalent of the § 1983 cause of
action against state actors, will lie where the defendant has violated the plaintiff’s rights under
color of federal law.” Brown, 250 F.3d at 800. See also Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir.
2018) (stating “Bivens is the short-hand name given to causes of action against federal officials
for alleged constitutional violations.”). “In order to state a claim under Bivens, a claimant must
show: (1) a deprivation of a right secured by the Constitution and laws of the United States; and
(2) that the deprivation of the right was caused by an official acting under color of federal law.”
Doty v. United States, Civ. No. 15-3016, 2016 U.S. Dist. LEXIS 77650, at *16 (D. N.J. June 15,
2016).
With respect to scope, Bivens permitted a damages remedy “to compensate persons
injured by federal officers who violated the prohibition against unreasonable search and
seizures.” Ziglar, 137 S. Ct. at 1854. The Supreme Court has extended Bivens to only two other
constitutional violations. Id. In Davis v. Passman, 442 U.S. 228 (1979), the Court held that the
Fifth Amendment Due Process Clause gave an administrative assistant a damages remedy
against a Congressman for firing her due to gender. Ziglar, 137 S. Ct. at 1854. In Carlson v.
Green, 446 U.S. 14 (1980), the Court held the Eighth Amendment Cruel and Unusual
Punishment Clause gave a prisoner’s estate a damages remedy against prison officials for failing
to provide adequate medical treatment for asthma. Ziglar, 137 S. Ct. at 1854. Bivens, Davis, and

13

Carlson are the only cases in which “the Court has approved of an implied damages remedy
under the Constitution itself.” Ziglar, 137 S. Ct. at 1857. See also Hernandez v. Mesa, 140 S. Ct.
735, 741 (2020) (same); Black v. United States, 436 F. Supp. 3d 813, 815 (D.N.J. 2020) (same).
Courts are cautioned that the extension of Bivens to matters involving constitutional claims other
than those already recognized is “a ‘disfavored judicial activity.’” Mammana v. Barben, No. 202364, 2021 U.S. App. LEXIS 15191, at *4 (3d Cir. May 21, 2021) (quoting Ziglar, 137 S. Ct. at
1857).
a. Deliberate Indifference
Plaintiff herein seeks damages on the basis of deliberate indifference for Defendants
Kenner and Gibb’s alleged failure to adequately address his medical needs after the shower
incident. It is well settled that a prison official’s deliberate indifference to a prisoner’s serious
medical needs is a violation of the prisoner’s Eighth Amendment protection against cruel and
unusual punishment. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d
326, 346 (3d Cir. 1987). In this regard,
“To act with deliberate indifference to serious medical needs is to recklessly
disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330
(3d Cir. 2009) (citations omitted). Allegations of mere negligent treatment,
including medical malpractice, do not trigger the protections of the Eighth
Amendment. See Estelle, 429 U.S. at 105-06. Furthermore, a prisoner’s medical
treatment is presumed to be proper “absent evidence that it violates professional
standards of care.” Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir.
2017) (citation omitted). A prisoner’s disagreement with the course of treatment
does not create an actionable constitutional violation. See Monmouth Cnty. Corr.
Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987).
Tolentino v. Smucker, No. 20-3209, 2021 U.S. App. LEXIS 9848, at *2-3 (3d Cir. April 6, 2021).
As referenced above, an inmate who brings a deliberate indifference claim “must
demonstrate (1) that the defendants were deliberately indifferent to their medical needs and (2)
that those needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A medical
14

need is considered serious “if it is ‘one that has been diagnosed by a physician as requiring
treatment or one that is so obvious that a lay person would easily recognize the necessity for a
doctor’s attention.’” Monmouth County Correctional Institutional Inmates, 834 F.2d at 347
(quoting Pace v. Fauver, 479 F. Supp. 456, 458 (D. N.J. 1979)).
Deliberate indifference further “requires the official to both ‘be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists’ and to ‘also
draw the inference.’” Chavarriaga v. New Jersey Dept. of Corrections, 806 F.3d 210, 229 (3d
Cir. 2015) (quoting Farmer v. Brennan, 511 U.S. 825, 835-37 (1997)).
Ultimately, “deliberate indifference is a subjective state of mind that can, like any other
form of scienter, be proven through circumstantial evidence and witness testimony.” Id.
i.

Defendant Kenner

Defendant Kenner is a non-medical prison official. Accordingly, he “cannot ‘be
charge[d] with the Eighth Amendment scienter requirement of deliberate indifference’ when the
‘prisoner is under the care of medical experts’ and the official does not have ‘a reason to believe
(or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a
prisoner.’” Pearson v. Prison Health Service, 580 F.3d 526, 543 (quoting Spruill v. Gillis, 372
F.3d 218 (3d Cir. 2004)); see also Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (holding
that non-physicians cannot “be considered deliberately indifferent simply because they failed to
respond directly to the medical complaints of a prisoner who was already being treated by the
prison doctor.”).
It is undisputed that upon Plaintiff’s arrival at Defendant Kenner’s office, Kenner called
the on-call physician and had the physician speak with Plaintiff. (SUF ¶¶ 80-81; RSUF ¶¶ 8081.) Plaintiff was instructed to return at sick call and Defendant Kenner chose to keep Plaintiff

15

in the office for observation until then, instead of sending him back to his cell. (SUF ¶¶ 82-84;
RSUF ¶¶ 82-84.) Plaintiff fails show that Defendant Kenner acted with deliberate indifference.
Plaintiff alleges he was intentionally denied and delayed medical care by Defendant Kenner but
does not point to any facts of record in support of his claim. On the contrary, the facts show that
Defendant Kenner promptly called the on-call physician, and once under her care, abided by her
instructions. (SUF ¶¶ 80-84; RSUF ¶¶ 80-84.) Because Plaintiff cannot establish the first prong
of a deliberate indifference claim, the second prong is rendered moot.
Accordingly, Plaintiff has failed to raise any genuine dispute of material fact as to
Defendant Kenner’s actions, and Defendant Kenner is entitled to summary judgment on
Plaintiff’s deliberate indifference claim.
ii.

Defendant Gibb

With respect to Defendant Gibb, Plaintiff broadly alleges said Defendant intentionally
denied and delayed medical attention but does not point to any dispute of material fact in support
of his claim. It is undisputed that Defendant Gibb evaluated Plaintiff once at Health Services and
once in his housing unit. (SUF ¶¶ 104-105, 110-111; RSUF ¶¶ 104-105, 110-111.) After
conducting each evaluation, Gibb consulted with the on-staff physician and took orders from him
concerning any further treatment. (SUF ¶¶ 107, 113; RSUF ¶¶ 107, 113.) Neither one of these
actions rise to the level of deliberate indifference protected by the Eighth Amendment.
Moreover, Plaintiff’s claim that Defendant Gibb intentionally denied access to medical
prescriptions and prescribed physical therapy, is factually unsupported by the record. A Clinical
Encounter record dated January 26, 2013 states in pertinent part that Defendant Gibb “presented
and discussed [Plaintiff’s medical case] in great length with on call MD.” (ECF No. 87-3 at 34.)
Pursuant to that discussion, Defendant Gibb . . .

16

[R]eceived verbal orders with good verbal read back for:
- Delete decadron begin 15 mg prednisone BID x 5 days.
(Removed from pxsys)
- Allow bottom bunk x 30 days. “No first floor pass authorized.”
Inmate was able to ambulate up to and down from second floor
yesterday and today. There is [sic] no clinical findings to allow
first floor pass. This was verbally confirmed twice with MD.
Inmate was instructed on the MDs [sic] orders, inmate verbalized his
disapproval colorfully, was discharged back to housing unit.
(ECF No. 87-3 at 34.)
In accordance with the doctor’s orders, Defendant Gibb prescribed prednisone for
Plaintiff by “[s]elf [a]dministration. (ECF No. 87-3 at 34.) This, coupled with Plaintiff’s claim
that Defendant Gibb prevented him from going to physical therapy and the hospital,7 cannot be
attributed to Gibb, as both constitute a disagreement regarding prison doctors’ decisions. Ziglar
v. Abbasi, 137 S. Ct. 1843, 1860 (2017) (“a Bivens claim is brought against the individual
official for his or her own acts, not the acts of others.”); see also Monmouth County Correctional
Institutional Inmates, 834 F.2d at 346 (disagreements to the method of care are insufficient to
support a deliberate indifference claim).
Accordingly, for the aforementioned reasons, Defendant Gibb is entitled to summary
judgment on this claim.

As the result of Defendant Gibb’s second encounter with Plaintiff, a Clinical Evaluation record
dated January 27, 2013 states in pertinent part that Defendant Gibb made “phone contact [ ] with
on call MD, case was presented and discussed in detail, discharge summary was reviewed with
emphasis on ‘There is no evidence of any neurological deficit.’ MD was placed into contact
with east RN who evaluated inmate Coleman 2 days prior, after being discharged from hospital,
to discuss her encounter with inmate Coleman. Per on call physician, I received verbal orders
with good verbal read back (confirmed twice) for no interventions, nor transport to local hospital
at this time. Md [sic] was placed in contact with operations LT, where the LT received /
confirmed the same orders.” (ECF No. 87-3 at 38.)
7

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b. Excessive Force
Last, Plaintiff claims he was the victim of excessive force by Defendant Gibb. An
inmate’s challenge to a prison official’s use of excessive force is brought under the Eighth
Amendment’s protection against cruel and unusual punishment. Hudson v. McMillian, 503 U.S.
1, 6-7 (1992). When assessing an excessive force claim, the inquiry is “whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Id. at 7. To that end,
[C]courts look to several factors including: (1) “the need for the application of
force”; (2) “the relationship between the need and the amount of force that was
used”; (3) “the extent of injury inflicted”; (4) “the extent of the threat to the safety
of staff and inmates, as reasonably perceived by responsible officials on the basis
of the facts known to them”; and (5) “any efforts made to temper the severity of a
forceful response.”
Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley v. Albers, 475 U.S. 312, 327
(1986)).
Moreover, “‘[t]he infliction of pain in the course of a prison security measure . . . does
not amount to cruel and unusual punishment simply because it may appear in retrospect that the
degree of force authorized or applied for security purposes was unreasonable, and hence
unnecessary in the strict sense.’” Jenkins v. Hayman, Civil Action No. 09-4989, 2013 U.S. Dist.
LEXIS 88446, at *25 (D. N.J. June 24, 2013) (quoting Whitley, 475 U.S. at 319).
When evaluating the nature of the force used, the absence of injury is relevant but not
determinative. Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (“Injury and force, however, are only
imperfectly correlated, and it is the latter that ultimately counts.”). Notably, “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). A de minimis use of force that “is not of a sort ‘repugnant to the conscience
of mankind’” does not violate the cruel and unusual punishment clause of the Eighth
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Amendment. Id. at 9-10 (quoting Whitley, 475 U.S. at 327). “In other words, physical force
amounting to an actionable tort claim may not be enough to qualify as a claim under the Eighth
Amendment.” Johns v. Nunn, Civil No. 04-0624, 2005 U.S. Dist. LEXIS 28906, at *19 (D. N.J.
Nov. 17, 2005) (quoting Williams v. Mussomelli, 722 F.2d 1130, 1133 (3d Cir. 1983)).
The alleged force at issue in this case concerns the moment when Defendant Gibb
transferred Plaintiff from a stretcher to a mat on the floor of his cell in the SHU. Plaintiff alleges
Defendant Gibb used excessive force when he “threw him onto a mat on the floor.” (RSUF ¶
132). However, during his deposition, Plaintiff could not remember if another corrections officer
assisted Defendant Gibb in transporting him to the SHU. (ECF No. 97-3 at 15.) Nor could
Plaintiff remember if he was in a wheelchair or on a stretcher at the time but was certain it was
“one or the other.” (ECF No. 97-3 at 14.) Plaintiff also could not remember how far he was
“thrown” or whether he landed face down or on his back. (ECF No. 97-3 at 14.) Plaintiff
testified that “all I remember is being thrown to [sic] the SHU. Like I said, I don’t remember.”
(ECF No. 97-3 at 16.) Moreover, Plaintiff does not allege any injury that resulted from the
purported incident of being “thrown” on the mat. (Second Am. Compl. ¶¶ 35-36.) Instead, he
alleges in conclusory fashion that Gibb “left Coleman on the mat covered in urine, in pain, and
unable to move[,]” and references the results of testing pertaining to the shower incident injury to
support his excessive force claim. (Second Am. Compl. ¶ 37; RSUF ¶ 132.8)
Defendant Gibb testified that he and another corrections officer transported Plaintiff to
the SHU on a stretcher. (ECF No. 87-5 at 15.) Upon arrival at the SHU, Gibb “Put the stretcher
into one of the showers to protect [Plaintiff’s] dignity. Followed SHU protocol to strip him out

This Court notes that Plaintiff’s submissions do not contain page 153 of Plaintiff’s deposition,
which is cited in Paragraph 132 of his RSUF as proof of these facts. Moreover, the other cited
page—155—does not contain facts consistent with Plaintiff’s representation of same.
8

19

and to place him into SHU clothing. And then placed [Plaintiff] onto a mattress on the floor in a
cell.” (ECF No. 87-5 at 15.) Gibb stated he has “never thrown a patient in [his] life.” (ECF No.
87-5 at 15.) Gibb further testified another officer assisted him in transporting Plaintiff to the
mattress in the SHU cell because “[he] can’t move a long board or person by [himself].” (ECF
No. 87-5 at 15.)
Other than Plaintiff’s vague account of the alleged incident during depositions, he
provides no evidence of record to establish Defendant Gibb acted maliciously or sadistically with
the intent to cause harm to Plaintiff.9 Instead, the record demonstrates that Defendant Gibb
responded to Plaintiff’s demands to go to the hospital shortly after being placed in the SHU.
(ECF No. 87-5 at 21.) Specifically, Gibb called the on-call doctor, John Chung, M.D., and
presented Plaintiff’s case “in detail.” (ECF No. 87-5 at 21.) Defendant Gibb “received verbal

9

In support of his claims, Plaintiff retained the services of Dr. James G. Lowe to examine
Plaintiff and assess the medical records pertaining to Plaintiff’s medical treatment while
incarcerated. Dr. Lowe prepared a report on September 19, 2018, in which he begins his analysis
in the context of the vent incident which occurred when Plaintiff was taking a shower on January
21, 2013. (ECF No. 97-8 at 2.) Dr. Lowe references Dr. Chung’s discharge of Plaintiff “back to
housing” on January 26, 2013. (ECF No. 97-8 at 2.) Dr. Lowe next references Plaintiff’s
complaints on January 27, 2013, in which he claimed “he could not move his right side and was
told that was to be evaluated the next day[.]” (ECF No. 97-8 at 2.) Last, Dr. Lowe references the
medical evaluation of Plaintiff that occurred in the SHU on January 28, 2013 and resulted in
Plaintiff being transported to the hospital. (ECF No. 97-8 at 2.) No mention is made of any
incident that purportedly occurred upon Plaintiff’s transport to the SHU on January 27, 2013.
Dr. Lowe notes the neurologist who evaluated Plaintiff at the hospital on January 28, 2013 “felt
there was no change in the cervical CT scan and that the right sided weakness could not be
‘objectively proven.’” (ECF No. 97-8 at 2.) Dr. Lowe’s own analysis of the CT scan of cervical
spine taken on January 28, 2013 revealed no change from the CT scan of the cervical scan taken
on January 22, 2013. (ECF No. 97-8 at 5.) Moreover, the “MRI of the cervical spine from
1/30/13 shows similar findings” as that of the January 22, 2013 and January 28, 2013 CT scans.
(ECF No. 97-8 at 5.) Dr. Lowe concludes that the January 21, 2013 shower incident was the
cause of Plaintiff’s “head injury, subsequent post-traumatic seizure, right hemiparesis, and a C6
vertebral fracture with possible vertebral artery injury.” (ECF No. 97-8 at 5.) As such,
Plaintiff’s reliance on Dr. Lowe’s report in support of his representation to the court that “it is
undisputed that Mr. Coleman suffered serious exacerbation of injuries that required his transport
to an outside hospital for medical treatment following these events” is not born out by the record.
20

orders with good verbal read back (confirmed twice) for no interventions at this time, no
transport to hospital, inmate is to be evaluated by HSU [sic] staff in the morning. Those orders
were relayed to OPS LT.” (ECF No. 87-5 at 21.) When evaluated in the SHU by José Ravago,
MLP the following morning, Plaintiff complained of “sudden right sided weakness which was
first experienced when he woke up yesterday morning.” (ECF No. 87-3 at 41.) Based upon
Plaintiff’s complaint and his history of head and neck injury from the shower incident, a
determination was made to transport Plaintiff to the hospital. (ECF No. 87-3 at 41.) Upon
admission to the hospital, Plaintiff complained of the same right-sided weakness and paralysis he
complained of prior to his transfer to the SHU. (ECF No. 87-3 at 53.) All diagnostic testing
performed at the hospital confirmed the findings from Plaintiff’s prior hospital visits and
diagnostic testing. (ECF No. 87-3 at 46-51.)
The record before this court is devoid of any mention by Plaintiff to any prison staff or
medical provider prior to commencement of litigation, that he was “thrown on the mat” by Gibb
on January 27, 2013. As discussed above, “a nonmoving party must adduce more than a mere
scintilla of evidence in its favor and cannot simply reassert factually unsupported allegations
contained in its pleadings[.]” Williams v. West Chester, 891 F.2d 458, 460 (3d Cir. 1989)
(citation omitted). Accordingly, summary judgment is mandated “against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
Applying this standard to Plaintiff’s excessive force claim, this Court concludes Plaintiff has
failed to satisfy his burden as the non-moving party at the summary judgment stage.
In view of the foregoing, Defendants’ motion for summary judgment on the excessive
force claim against Defendant Gibb shall be granted.

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V.

Conclusion

For the reasons set forth hereinabove, Defendants’ Motion shall be granted in its entirety.
An appropriate Order follows.
BY THE COURT:

/s/ Hon. C. Darnell Jones II
C. Darnell Jones, II

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J.