BISTRIAN v. WARDEN TROY LEVI et al

Filing 239

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 3/6/18. 3/8/18 ENTERED AND COPIES E-MAILED.(jpd )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PETER BISTRIAN,
Plaintiff,
CIVIL ACTION NO..,p~·cv-301

v.

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•
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f

WARDEN TROY LEVI, et al.
Defendants.

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MAR ~ 6 2018
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MEMORANDUM OPINION
Rufe, J.
Plaintiff Peter Bistrian brings this action against prison officials of the Federal
Center ("FDC") in Philadelphia and the United States of America, alleging violations f his First,
Fifth, and Eighth Amendment rights, as well as violations of the Federal Tort Claims
("FTCA"). Plaintiffs claims arise out of his placement in the Special Housing Unit(" HU")
while detained at FDC Philadelphia. The prison officials have moved for summary ju gment,
and the United States has moved to dismiss, or in the alternative for summary judgme t, for lack
of jurisdiction. For reasons set forth below, the Court will grant in part and deny in p
motions.

I.

BACKGROUND

A.

FACTUAL BACKGROUND

1

Peter Bistrian was detained at FDC Philadelphia pending his trial and through entencing
on wire fraud-related charges from August 2005 until March 2008. 2 During his time a FDC

1

The facts are either agreed upon by the parties or set forth in the light most favorable to Plaintiff as the non-moving
party.
2

Plaintiff was released on bail after his arrest for wire-fraud charges. However, in August 2005, he fail d to appear
at trial and became a fugitive. He was subsequently arrested at the Canadian border as he attempted to ee the
United States, and was sent to FDC Philadelphia where he was detained until sentencing. Defs.' Propos d Statement
of Undisputed Facts (Doc. No. 197-2) at~~ 90-91.

Philadelphia, he spent four spells, totaling 477 non-consecutive days, in the SHU. The SHU is a
120-bed segregated housing unit where roughly 90 to 120 inmates are confined in six- y-eight
foot cells in solitary or near-solitary conditions for 23 or 24 hours a day, with little or

10

opportunity to interact with others. 3 Inmates may be placed in the SHU for administra 1ive or
disciplinary purposes.
Administrative detention can occur for a variety ofreasons. When an inmate's continued
presence in the general population would pose a serious threat to life, property, self, st ff, or
other inmates, or to the security or orderly running of the institution, the warden may pace the
inmate in administrative detention if (among other reasons) an investigation of an inm te is
pending for violating prison regulations or the inmate requests admission for protectiv purposes.
Bureau of Prison ("BOP") regulations require the warden to prepare an administrative rder
"ordinarily within 24 hours, detailing the reason(s)" for placement in the SHU. 4 In ad ition, a
Segregation Review Officer ("SRO") must make ongoing determinations about the
appropriateness of the inmate's continued placement in administrative detention. 5
Unlike administrative detention, disciplinary detention is reserved for inmates

ho have

committed serious violations of BOP rules and are designated as exhibiting violent or eriously
disruptive behavior. Inmates in disciplinary segregation have fewer privileges than th se in
administrative detention. Only a Discipline Hearing Officer ("DHO") may impose dis iplinary
segregation, and may do so after a hearing finding that the inmate has committed a ser ous
prohibited act. An SRO must also monitor inmates in disciplinary segregation and m
determinations about the appropriateness of their continued separation.
3

Pl. 's Proposed Statement of Undisputed Facts at~ 99.

4

Defs.' Proposed Statement of Undisputed Facts at~ 54 (quoting 28 C.F.R. § 541.25).

5

Id. at~ 60 (quoting 28 C.F.R. § 541.26).

2

e

1. Plaintiff Enters the SHU for the First Time (November 18, 2005 to anuary
9, 2006)

On November 18, 2005, Plaintiff was transferred out of the general population nd into
administrative detention in the SHU because he abused his telephone privileges. 6 Tlu: e days
later, Plaintiff was provided with a copy of the incident reports of his prior telephone a uses,
which gave him written notice of the disciplinary charges being brought against him. 7 A hearing
on Plaintiffs telephone abuses was held on November 30, 2005, at which time Plainti

admitted

that he had violated BOP rules by placing several unauthorized telephone calls to his fl rmer
girlfriend using the account of another inmate. 8 After the hearing, on December 9, 2095, the
DHO imposed on Plaintiff the following penalties: 8.5 years oflost telephone privilegds, 30 days
of disciplinary segregation, and 277 days of lost good conduct time. 9 Plaintiff was not given
credit for the three weeks he had spent in the SHU up until that time, but was compell d to serve
an additional 30 days. 10 After serving the 30-day disciplinary segregation, Plaintiff w s released
from the SHU on January 9, 2006. 11 Although the propriety of the 30-day disciplinary
segregation is not at issue here, Plaintiff bases part of his claims on this initial stint in t e SHU,
alleging that Defendants failed to review his placement between November 18, 2005
December 9, 2005.

6

Pl. 's Proposed Statement of Undisputed Facts at ifif 154, 157.

7

Id. at if 154 (citations omitted); Defs.' Proposed Statement of Undisputed Facts at if 60 (citation omitte ).

8

Pl.' s Proposed Statement of Undisputed Facts at iii! 160-61.

9

Id. at if 162.
IO Id.

11

Id. at if 165.

3

2. Plaintiff Enters the SHU for the Second Time (January 25, 2006 to ecelllber
8, 2006)
Shortly after he returned to the general population, Plaintiff was again accused f abusing
his phone privileges. He was transferred to the SHU for the second time and spent 308 days there
(from January 25, 2006 to December 8, 2006). 12 It was during this second period of c nfinement
that things became precariously worse for Plaintiff.
Plaintiff was informed that he was being placed in administrative segregation " ending
SIS investigation" for his phone abuse. 13 In late January or February of 2006, Warden Levi was
informed that there was no detention order explaining the basis for the segregation in laintiff s
SHU file. 14 Although Plaintiff requested copies of his detention order, he did not recei e a copy
until July 6, 2006, which stated that he was being held in the SHU for "security reason ." 15
Despite the delay in receiving the detention order, Plaintiff received a copy of a "SHU eview
form," which was completed on a monthly basis. 16 The SHU review forms documented that
prison officials routinely reviewed Plaintiff's status in the SHU and provided him

wi~l

"a written

copy of staff's decision and the basis for his continued SHU housing assignment at eal 30 day
review." 17
In the spring of 2006, Plaintiff was assigned the job of a SHU orderly, which a lowed him
to be out of his cell and move around the SHU from 6:00 a.m. to 5:00 p.m. daily to co plete the

12

Id. at~ 172.

13

Id. at~ 179. SIS refers to Special Investigative Services.

14

Id. at~ 178.

15

In fact, Plaintiff had previously been given a security threat group assignment for his serious and rep ated phone
abuse. A security threat group is an assignment given to an inmate "if they were a security concern for he orderly
running of the institution." Defs.' Proposed Statement of Undisputed Facts at~ 118, n.4 (citations omi ed).
16

Id. at~ 122.

17

Id. For example, Plaintiffs thirty day SHU reviews took place on February 29, March 30, April 27,
22, July 20, August 17, September 14, October 12, November 8, and December 3, 2006. Id. at~ 123.

4

ay 25, June

duties of folding clothes, removing food trays, cleaning the cell area, and picking up tr sh. 18
Plaintiff worked as an orderly for roughly one to one and a half months. 19 Shortly afte
becoming an orderly, Steve Northington (another SHU detainee) asked Plainti(fto pas notes to
other SHU inmates, including Kaboni Savage. 20 Northington and Savage are part of a iolent
Philadelphia drug gang, and were being held in an ongoing prosecution that involved s bstantial
witness intimidation, death threats to witnesses and law enforcement, and a firebombi g that
killed six family members of the Government's chief cooperating witness. 21 Savage is currently
on death row for the killings, and Northington is serving a life sentence withou~ the po sibility of
parole. After Northington asked Plaintiff to pass a second note, Plaintiff informed Sen or Officer
Bowns and Lieutenant Gibbs ofNorthington's requests. 22 Plaintiff and Gibbs agreed t the
following arrangement: Plaintiff would accept notes from Northington and bri,ng them o
correctional officers in SIS to copy the notes as part of the FBI' s ongoing investigatio of the
Northington-Savage drug gang, then Plaintiff would return the original note to the inte ded
recipient. 23 Plaintiff was told that his phone privileges would be reinstated and that he would be
returned to the general population after the note-passing scheme was completed. 24
For a few weeks, Plaintiff delivered the notes to SIS officials. Defendants Ber os,
Bowns, Gibbs, Jezior, Levi, McLaughlin, Robinson, and Rodgers knew Plaintiff wasp ssing
notes between members of the Northington-Savage gang, and was showing the notes t SIS, so

18

Pl.'s Proposed Statement of Undisputed Facts at iii! 186-92.

19

Id. at if 198.

20

Id. at if 199.

21

Id. atifif201-02.

22

Id. at iii! 205-06.

23

Id. atif 207.

24

Id. at

if 211.

5

that they could be copied. 25 On one occasion a few weeks into the note-passing schem ,
however, Plaintiff inadvertently delivered a photocopy of an original note that SIS had made to a
member of the gang, alerting the gang of his cooperation with prison officials. 26 Plain 'ff told
Gibbs of the situation. Gibbs immediately removed Plaintiff as an orderly for his prot ction, and
Plaintiff returned to the ordinary confinements of the SHU, which included being con ned to a
cell for 23 to 24 hours each day, with roughly 5 hours of allotted recreation time per w ek. 27
Despite these safety precautions, Northington and other gang members began threateni g
Plaintiff. Plaintiff told Bowns and Gibbs of the threats. 28 Northington posted a sign o his cell
door which read "No Snitches."29 Plaintiff had no physical contact with Northington

til June

30, 2006. 30

a. June 30, 2006 Northington Attack
On June 30, 2006, Plaintiff was allowed out of his cell to spend one hour in the recreation
pen. However, Northington and two other inmates of the Northington-Savage gang- elani Lee
and Terry Walker-were also in the recreation area at the time. 31 Northington, Lee, a d Walker

See id. at~~ 206-08 (explaining that Plaintiff met with Bowns and Gibbs to inform them that Northia ton wanted
Plaintiff to pass notes, and that the three agreed to the arrangement where Plaintiff would pass notes and also
cooperate with the officials' investigation), ~~ 213-14 (stating that Bergos, Gibbs, Jezior, and R.o~gers .t~stified that
they knew of the note-passing scheme),~~ 223-25 (explaining that Robinson and Rodgers knew about t e notepassing scheme). See also Pl. 's Sur-Reply (Doc. No. 229), Ex. B (Bistrian Dep.) at 696-698 (identifying
McLaughlin as being aware of the note-passing scheme).
25

26

Pl. 's Proposed Statement of Undisputed Facts at~~ 217-18.

27

Id. at~ 219; Defs.' Proposed Statement of Undisputed Facts at~ 146.

28

Bowns and Gibbs admitted that Plaintiff told them ofNorthington's threats. Pl.'s Proposed Statemen' of
Undisputed Facts at~~ 144-45. Plaintiff also testified that Jezior and Levi knew that he was being threa ened. Pl.'s
Sur-Reply (Doc. No. 229), Ex. B (Bistrian Dep.) at 696-98. Although Jezior and Levi testified that they were never
informed ofNorthington's threats; this contradictory deposition testimony creates a genuine diispute of aterial fact
that precludes summary judgment as to Jezior and Levi.
29

Pl. 's Proposed Statement of Undisputed Facts at~~ 220-21.

30

Defs.' Proposed Statement of Undisputed Facts at~ 149.

31

Pl. 's Proposed Statement of Undisputed Facts at~ 256.

6

approached Plaintiff and began beating him, knocking him unconscious, dislocating hi shoulder,
breaking his teeth, and causing other injuries. According to the incident report, Senior Officer
Jezior responded to an alarm and, on his arrival outside the recreation area, saw inmate beating
Plaintiff. Several staff members arrived on the scene and shouted orders at the. assailjts to stop
the attack. Once a sufficient number of correctional officers had amassed, the officers opened
the recreation pen and intervened to move the assailants away from Plaintiff.32 . In the 1ubsequent
investigation, Northington explained to officials that he attacked Plaintiffbecai:ise Plai tiff was
cooperating with authorities against him. After the attack, a formal separation order w s
implemented to ensure Plaintiff would be separated from Northington, Lee, and Walke .
Plaintiff remained in the SHU after the attack. 33

b. October 12, 2006 Taylor Attack
On October 12, 2006, Plaintiff was attacked for a second time in the re<;reation
Plaintiff was in hand restraints waiting to exit the recreation area when Aaron Taylor,

inmate

suffering from mental illness and with a history of violent attacks on fellow inmates, 34
approached him waving a razor-blade weapon, and repeatedly slashed Plaintiff'sface,f eek, and
l~gs.. Still h~n~:uffed, Pl~intiff was knocked to the ground and tried to stave off his at acker by

kickmg at him.

Correctional officers shouted orders at Taylor to stop, and fiJjed pepper spray

into the pen, to no avail. Defendant Knox then launched an explosive device called a' Tactical

32

Plaintiff alleges that the unspecified SHU Lieutenant did not give the order to open the recreation pen door until
12 to 15 correctional officers were present on the scene. Plaintiff notes that SHU protocol "dem~nds th t when two
inmates are fighting, correctional officers cannot open the door of the rec cage until the SHU Lieutenan orders them
to do so, regardless of what is going on inside the recreation cage, or how long it takes for the Lieutena t to get
there." Id. at~ 258.
33

Id. at~ 272.

34

An investigation after the attack revealed that Taylor "had a history of unprovoked violence toward o her
inmates." Id. at~ 285.

35

Id. at~~ 276-78.

7

Blast Stun Munition," which incapacitated Taylor and allowed the officers to enter the ecreation
pen, secure Taylor, and attend to Plaintiff. 36 Plaintiff sustained lacerations to the left sre of his
face and his right forearm. Plaintiff also suffered back injuries from the explosion oft e tactical
stun device. Plaintiff was treated by medical personnel after the assault, but remained n the
SHU.
On October 16, 2006, Plaintiffs criminal defense counsel sent a letter to Ward n Levi
asking for the "basis on which [Plaintiff] is being held" in the SHU. 37 WardenLevi re ponded to
Plaintiffs counsel, stating:
Our records indicate inmate Bistrian was placed in the Special Housing Unit (S U) on
January 25, 2006, under administrative detention statue due to his continuous t lephone
abuse. Inmate Bistrian has received repetitive infractions for telephone abuse. While he
was housed in the general population, inmate Bistrian persuaded other inmates o place
telephone calls on his behalf. As a result, he was placed in administrative dete tion as his
presence in the general population created security concerns. 38
Plaintiffs counsel filed a grievance with the FDC on Plaintiffs behalf, and Plaintiff
subsequently participated in a hearing with prison officials. Following the hearing, Pl intiff sent
a letter to Warden Levi requesting a transfer to the general population and promising t at he
would not violate any more BOP policies. 39 Thereafter, during a SHU review, prison fficials
determined that Plaintiff should be released from the SHU. On December 8, 2006, Pl "ntiff
returned to the general population. 40

36

Id. at iii! 280-82.

37

Id. at iii! 358-59.

38

Id. at ii 359.

39

Defs.' Proposed Statement of Undisputed Facts at iii! 178-82.

40

Id. at iii! 183-84.

8

3. Plaintiff Enters the SHU for the Third Time (December 22, 20:06 to anuary
25, 2007)
.
Plaintiff was removed from the general population and placed into administrati e
segregation in the SHU for a third time, from December 22, 2006 to January 25, 2007.

1

Defendants allege that Plaintiff was placed in the SHU after the SIS received il).formati n on
December 21, 2006, which indicated that a contract killing of Plaintiff had been i:nitiat d by
another inmate.

42

On January 9, 2007, Plaintiff's counsel wrote a letter to Warden Le

J

asking

for the reasoning for Plaintiff's placement in the SHU.43 On January 22, 2007,. Warder Levi

responded that the FDC "records indicate[ d] inmate Bistrian was placed in SHU bn De ember
22, 2006, under administrative detention status due to an investigation."44 Three days ater,
Plaintiff was returned to the general population. 45

4. Plaintiff Enters the SHU for the Fourth Time (September 13, 2007
December 4, 2007)

to

Plaintiff was removed from the general population and placed into administrati e
segregation in the SHU from September 13, 2007 to December 4, 2007.

46

Plaintiff all ges this

fourth stint in the SHU was retaliatory in nature, after Plaintiff complained about his tr atment at
FDC Philadelphia during his sentencing hearing.
On August 23, 2007, Plaintiff participated in the first of two sentencing h~arin
criminal case. At the hearing, Plaintiffs counsel contested the legality of Plaintiffs pl cement
in the SHU. The Government explained that Plaintiffs placement in the SHU was lar ely due to

41

Pl.'s Proposed Statement of Undisputed Facts at ii 360.

42

Defs.' Proposed Statement of Undisputed Facts at ii 186.

43

Id. at ii 188.

44

Pl's Proposed Statement of Undisputed Facts at ii 366 (citation omitted).

45

The propriety of the third period of confinement is not actionable, but is relevant for background.

46

Defs.' Proposed Statement of Undisputed Facts at ii 190.

9

his telephone abuses, and that Plaintiff had just recently violated prison rules

a~ain

by

another inmate place calls to Plaintiffs sister on his behalf. 47

a

Following the hearing, the Government provided Plaintiffs counsel with rec
two calls made by the other inmate to Plaintiffs sister allegedly on Plaintiffs behalf.

1

n

September 11, 2007, Plaintiffs counsel sent an email to counsel for the Government, r peating
his challenge to the purported telephone violation charges against Plaintiff, and &man, ing a
copy of the applicable prison regulations. 48 Counsel for the Government forwarqed th email to
FDC Philadelphia. The next day, Senior Officer Jezior wrote an incident report, docu
that Plaintiff had violated BOP rules by convincing another inmate to place unauthoriz d calls to
Plaintiffs sister. 49 On September 13, 2007, Plaintiff was removed from the general po ulation
and transferred to the SHU. 50 The next day, Plaintiff received a hearing on this ~iolati
hearing officer imposed on Plaintiff a 60-day loss of phone privileges. 51
Plaintiff remained in the SHU after the hearing was completed. Plaintiff ij.led a grievance
challenging his continued placement in the SHU, but the grievance was denied, Plaint ff later
appealed the decision, but the appeal was also rejected. 52 During this time, Plaintiff al eges that
Warden Levi told him that "he would never see the light of day again." 53 Psychology taff also
conducted monthly reviews of Plaintiffs condition, but noted only that Plaintiffs adju tment to

47

Pl. 's Proposed Statement of Undisputed Facts at iii! 368-71.

48

Id. at ifif 371-72.

49

Id. at ifif 374-76.

50

Defs.' Proposed Statement of Undisputed Facts at if 190.

51

Id. at ifif 380, 384.

52

Id. at ifif 390-91, 394-95.

53

Id. at if 391 (citation omitted).

10

the SHU had been "unremarkable. " 54 Plaintiff returned to the general population on D cember 4,
2007. 55 On March 14, 2008, Judge DuBois sentenced Plaintiff to 57 months' imwriso

ent.

Two days later, Plaintiff was transferred to the Metropolitan Correctional Center in Ne

York,

New York. 56
B.

PROCEDURAL HISTORY

Plaintiff initially raised nineteen claims against various prison officials ~t FDC
Philadelphia, as well as the United States. After this Court's ruling on Defendants' ma ions to
dismiss, six claims survived against twenty-eight defendants. On interlocutory appeal, the
United States Court of Appeals for the Third Circuit pared down the action further as t both the
number of claims and defendants. 57 The following claims and defendants remain:
•

Count I: Fifth Amendment Substantive Due Process (Failure to:Protec)

•
•

Defendants (13): (1-10) The 10 Prison Management Defendants 58 ;
Officer Bowns; (12) Lt. Rodgers; and (13) Lt. Robinson.

•
•

Claim: Defendants were deliberately indifferent to the risk posed by placing
Plaintiff in the same locked recreation pen as Northington ruild,his g ng.

Claim/Defendant: Jezior was deliberately indifferent to Plaintiffs s fety
during the Northington attack.

(

1) Sr.

Count III: Fifth Amendment Substantive Due Process (Punitive Detenf on)

•

Claim: Plaintiffs first detention in the SHU, his second untii the be . inning of
the note-copying operation, and his fourth, deprived him of his liberty interest,
as an inmate awaiting sentencing, to be free from punishment..

54

Id. at~ 392 (citation omitted).

55

Defs.' Proposed Statement of Undisputed Facts at~ 198.

56

Id. at ~ 199.

57

Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012). The United States did not take part in the appeal.

58

The 10 Prison Management Defendants are: Warden Levi, Assistant Wardens Brown and Blackman, ive
members of the Corrections Officers staff(Captain Knox, Lt. Gibbs, Sr. Officer Jezior, Sr. Officer Berg sand Unit
Manager White), and two Special Investigative Agents (McLaughlin and Garraway).

11

•

•

Defendants (10): (1-10) The 10 Prison Management Defendants.

Count V: Fifth Amendment Procedural Due Process
•

•

•

Claim: Plaintiff's placement and continued detention in the SBU fai ed to
comply with the Fifth Amendment's procedural due process1 require ents.
Defendants (11): (1-10) The 10 Prison Management Defendants; an
Wilson.

1

Count X: First Amendment (Retaliation)
•

•

•

Claim: Plaintiff's placement and continued detention in SHU after is attorney
challenged Plaintiff's previous placement was retaliatory for e:Xerci ing his
First Amendment rights.
Defendants (10): (1-10) The 10 Prison Management Defendants.

j

Count XV: FTCA Negligence Claim (Failure to Protect as a Confidential
Informant)
•

•

•

Claim: The United States of America negligently failed to protect P aintiff,
who was cooperating with authorities, from the Northington a~tack 'Y locking
Plaintiff in the recreation cage with Northington and his fello'Y gan
members.
Defendant: The United States of America

Count XVI: FTCA Negligence Claim (Failure to Protect from Assault)
•

Claim: The United States of America negligently failed to
from the Taylor assault.

•

pto~ect

P aintiff

Defendant: The United States of America

The prison officials move for summary judgment on all remaining claims. In addition, the
United States moves to dismiss the claims asserted against it, or in the alternati:ve for s mmary
judgment, for lack of jurisdiction.

II.

ST AND ARD OF REVIEW
Upon motion of a party, summary judgment is appropriate if "the materiails int e record"

show "that there is no genuine dispute as to any material fact and the movant is entitle ' to

12

judgment as a matter oflaw." 59 Summary judgment may be granted only ifthe 1111ovin · party
persuades the district court that "there exists no genuine issue of material fact that wou d permit
a reasonable jury to find for the nonmoving party." 60 A fact is "material" if it could afiect the
outcome of the suit, given the applicable substantive law. 61 A dispute about a material fact is
"genuine" if the evidence presented "is such that a reasonable jury could return a verdi t for the
nonmoving party. " 62
In evaluating a summary judgment motion, a court "must view the facts in the l"ght most
favorable to the non-moving party," and make every reasonable inference in that:party]s favor. 63
Further, a court may not weigh the evidence or make credibility determinations. 64 Nelertheless,
the party opposing summary judgment must support each essential element of the opplsition
with concrete evidence in the record. 65 "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." 66 This requirement upho1ds the
"underlying purpose of summary judgment [which] is to avoid a pointless trial in case where it
is unnecessary and would only cause delay and expense." 67 Therefore, if, after makinJ all

59

Fed. R. Civ. P. 56(a), (c)(l)(A).

60

Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988).

61

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

62

Id.

63

Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

64

Boyle v. Cnty. ofAllegheny, 139 F.3d 386, 393 (3d Cir. 1998).

65

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

66

Anderson, 477 U.S. at 249-50 (citations omitted).

67

Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson &
Co., 534 F.2d 566, 573 (3d Cir. 1976)).

13

reasonable inferences in favor of the non-moving party, the court determines thatthere is no
genuine dispute as to any material fact, summary judgment is appropriate. 68

Ill.

DISCUSSION
A.

COUNT I: FIFTH AMENDMENT SUBSTANTIVE DUE PROCESS (F{\ILURE 0
PROTECT)

In Count I, Plaintiff raises a Fifth Amendment substantive due process claim a ainst the
10 Prison Management Defendants, Senior Officer Bowns, Lieutenant Rodgers, and L;eutenant
Robinson, alleging Defendants failed to protect him from inmate violence when

lockin~ him in

the recreation pen with Northington. Plaintiff also alleges that Senior Officer 1ezior69 Las
deliberately indifferent to his safety during the Northington attack.
"Being violently assaulted in prison is simply not part of the penalty that crimi, al
offenders pay for their offenses against society."

70

Therefore, the Eighth Amen• dment'f Cruel

and Unusual Punishments Clause imposes on prison officials "a duty ... to

pr~tect

pri oners

from violence at the hands of other prisoners." 71 The Cruel and Unusual Punishments lause,
however, does not apply until an inmate has been both convicted of and sentenced for
crimes. 72 Thus, an inmate awaiting sentencing must look either to the Fifth Amendme t' s or the
Fourteenth Amendment's Due Process Clause for protection. 73
In its opinion in this case, the Third Circuit explained that it had "not yet in a p ecedential
opinion recognized that an unsentenced inmate may bring a due process-grounded fail e-to-

68

Celotex, 477 U.S. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).

69

Jezior is one of the 10 Prison Management Defendants.

°Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citation omitted).

7

71

Id at 833 (internal quotation marks and citation omitted).

72

Id at 832-34.

73

See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); see also Fuentes v. Wagner, 206 F.3d 335,341-4 (3d Cir.
2000).

14

protect claim of the sort that a sentenced inmate can bring under the Eighth A~endme ,t. But it
is well established that, under the Constitution's guarantees of due process, an Unsente ced
inmate is entitled, at a minimum, to no less protection than a sentenced inmate is entitl d to
under the Eighth Amendment." 74 Therefore, the Court of Appeals found that Plaintiff, as an
inmate who at all relevant times was either not yet convicted or convicted but rtot yet s ntenced,
"had a clearly established constitutional right to have prison officials protect hfan from inmate
violence." 75
To establish a claim for damages against a prison official for failure to protect n inmate
from violence, an inmate must show that: "(1) he was incarcerated under conditions p°[sing a
substantial risk of serious harm, (2) the official was deliberately indifferent to

~hat subJtantrnl

risk to his health and safety, and (3) the official's deliberate indifference caused him hlrm." 76
First, the evidence shows that Plaintiff was incarcerated under conditio(ls,posif a
substantial risk of serious harm. He was placed in the SHU with violent members of tie
Northington-Savage drug gang. Using his position as an orderly, Plaintiff began passi g notes
between gang members and intermittently showing the notes to the SIS so that they co ld be
copied for the FBI's ongoing investigation of the gang. 77 Those inmates, including No hington,
became aware that Plaintiff was sharing their notes with prison officials. 78 Notthingto,
threatened Plaintiff, calling him a snitch and shouting other hostile threats. 79 :Northing on also

74

Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012) (citing Fuentes, 206 F.3d at 344) (internal quotatio marks and
alterations omitted).
75

Bistrian, 696 F.3d at 367.

76

Id. (citations omitted).

77

Pl.'s Proposed Statement of Undisputed Facts at iii! 199, 207.

78

Id. at ifir 217-18.

79

Id. at iii! 220-21.

15

hung. a ''No Snitches" sign on his cell door. Plaintiff '.eported the threats. to c : n prirn
officials. 80 Because of the gang's discovery of Plamtiffs cooperation with pnson officials and
the danger posed to Plaintiff in continuing to work as an orderly where he would presu ably
!

interact with members of the gang, Plaintiff was removed from his position as

an order y and
!

returned to the ordinary restrictions of the SHU. 81 Despite this safety precautic)n, a fe

weeks

later, Plaintiff was placed in the recreation area with Northington and other gang mem1ers. In
light of this record, Plaintiff has put forth evidence showing that he was incarcyrated u der
conditions posing a substantial risk of serious harm.
Second, Plaintiff has produced evidence from which a reasonable fact finder co ld
conclude that some prison officials, though not all, were deliberately indifferen:t to the ubstantial
!

risk to Plaintiffs safety. Deliberate indifference is measured by an objective standard: "the
I

prison official-defendant must actually have known or been aware of the exces~hre ris 'to inmate
safety." 82 Viewing the evidence in the light most favorable to Plaintiff as the qon-mov·ng party,
Plaintiff has identified evidence showing that Defendants Bowns, Gibbs, Jeziot, and L vi knew
or were aware of the threats Northington made to Plaintiff. 83 Plaintiff has also pointed to
1

evidence showing that Defendants Bergos, Bowns, Gibbs, Jezior, Levi, McLau:ghlin,

80

Id. at if 222.

81

Id. at if 227; Defs.' Proposed Statement of Undisputed Facts at if 146.

82

obinson,

Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).

Bowns and Gibbs admitted that Plaintiff told them ofNorthington's threats. Pl. 's Proposed ~t&temen of
Undisputed Facts at ifif 144-45. Jezior and Levi testified that they were never informed ofNorj:hington' threats;
however, Plaintiff testified that he told them of the threats. Pl.'s Sur-Reply (Doc. No. 229) at 3, Ex. B ( istrian
Dep.) at 696-98. This is a disputed material fact that precludes summary judgment as to Jezior and Levi.
83

16

and Rodgers knew of the note-passing scheme and were aware of the risk Plaiqtiff fac d once his
cooperation with prison officials was discovered.

84

Third, Plaintiff has pointed to evidence which suggests that a reasonable jury c uld find
!

that some Defendants' deliberate indifference caused the Northington attack artd Plain iff s

that the officials cited above knew of the risk Northington posed to Plaintiffs safety,

d

although they removed Plaintiff as an orderly, they did not take action to prevept Plaintiff from
encountering Northington in the recreation area. Instead, these officials placeq the twj inmates
in the same recreation pen. This evidence is sufficient to create a genuine dispµte of llaterial
fact that these prison officials' deliberate indifference led to the Northington a~tack. 85
Although Plaintiff identified evidence that some prison officials knew M the rir to
Plaintiffs safety, he has failed to do so with respect to Defendants Brown, Blapk;man,rarraway,

" See Pl.' s Prnposed Statement ofUndisputed Facts at 1~ 206-08 (explaining that Plaintiff met with Bo ns and
1
Gibbs to inform them that Northington wanted Plaintiff to pass notes, and that the three agreed to the ~ngement
where Plaintiff would pass notes and also cooperate with the officials' investigation),~~ 213-1'4 (stating that Bergos,
Gibbs, Jezior, and Rodgers testified that they knew of the note-passing scheme),~~ 223-25 (explaining at
Robinson and Rodgers knew about the note-passing scheme). See also Pl. 's Sur-Reply (Doc. No. 229), r, x. B
(Bistrian Dep.) at 696-698 (identifying McLaughlin as being aware of the note-passing scheme).
1

85

Plaintiff also alleges that Jezior was deliberately indifferent to his safety during the Northington attacl Although
deliberate indifference can be demonstrated by a prison official's failure to intervene to stop a~ attack o~ an inmate,
the evidence must show that the official had "a reasonable opportunity to intervene and simply refused do so."
Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir. 2002). Here, the record shows that Jezior immediately ~esponded to
the alarm and shouted into the recreation area, ordering the attackers to stop their assault, and ~hat he intFrvened as
soon as he had sufficient support to do so safely. Defs.' Proposed Statement of Undisputed F<:tcts at~ 1~3; Pl.'s
Proposed Statement of Undisputed Facts at~~ 258-59. Plaintiff takes issue with the fact that fue BOP aited until
roughly 12 to 15 officials were present to enter the recreation pen. However, Plaintiff does not indicate ow Jong it
took these offic.ials to arrive o~ the sce~e,. and the. evidence suggests t~at t~e officials imn:ediately resp~pded t? the
emergency. Without more, this record is msufficient to create a genume dispute ofmatenal fact regardihg Jez10r's
response to the Northington attack. On appeal, the Third Circuit noted that more facts would qe require~ to establish
this failure to protect claim against Jezior for Plaintiff to prevail. Bistrian, 696 F.3d at 372 ("It rriay be rat
summary judgment for Jezior is on the horizon.") However, Plaintiff has been unable to ident\fy evide:fe
demonstrating that Jezior had a reasonable opportunity to intervene in the Northington attack ~nd simply refused to
do so. Moreover, Plaintiff has not pointed to, nor is the Court aware of, any precedent that woµld requ· ea
correctional officer to enter a recreation area alone to quell an attack involving four inmates. The Court concludes
that there is no evidence that Jezior was deliberately indifferent in responding to the Northingtbn attack, as opposed
to merely failing to prevent it from occurring. This additional claim against Jezior will be dismissed.

tp

17

Knox, and White. 86 Plaintiff can only point to evidence that some of these officials, at times,
attended weekly meetings during which inmates housed in the SHU were discussed, aid that
Brown, Blackman and Knox sometimes attended monthly meetings with SIS.

87

Atten1ance at

these meetings, however, is insufficient to show deliberate indifference on the part of these five
officials. Although circumstantial evidence may be used to prove that a pris@officiJhad actual
knowledge of a substantial risk, "it is not sufficient that the official should

hav~ been •rare."

88

Attendance at weekly and/or monthly meetings, without more, shows only that: these officials
possibly should have known of the risk to Plaintiffs safety, assuming that Plaintiffs c' operation
was discussed. Plaintiff, however, has not identified any evidence in the record showi[g that
Plaintiffs cooperation, or Northington's threats, were discussed at the meetings. Inste d, the
record shows that Plaintiffs cooperation was not discussed. 89 Thus, Plaintiff cannot e tablish
deliberate indifference as to Defendants Brown, Blackman, Garraway, Knox,

~nd

Whi e, and

I

summary judgment will be granted in favor of these five Defendants on this cl<;tim.

Defendants Are Not Entitled to Qualified Immunity on the Failure to Protect Claim
Defendants contend that they are entitled to qualified immunity with respect to the failure
to protect claim. The doctrine of qualified immunity insulates "from liability for civil amages
insofar as their conduct does not violate clearly established statutory or constit~tional ights of

86

Plaintiff alleges in his Sur-Reply that Garraway and Knox knew of the note-passing scheme. See Pl.' Sur-Reply
at 2. However, Plaintiff does not support this allegation with citations to evidence in the record which indicate that
Garraway and Knox knew of Plaintiffs note passing. Plaintiffs unsupported allegations agail).st these
officials,
without more, are unpersuasive and do not create a genuine dispute of material fact.
'

tto

87

See Pl.'s Proposed Statement of Undisputed Facts at if 113 (indicating the unit managers, like White, ttended the
weekly meetings, though not mentioning White by name as an attendee); see also id. at if 210 (stating that the
associate wardens Brown and Blackman, and sometimes Knox, attended the monthly SIS meetings).
88

Beers-Capitol, 256 F.3d at 133 (citation omitted).

89

See Pl. 's Proposed Statement of Undisputed Facts at if 210 ("[T]he subject of Plaintiffs cooperation i the KSG
[Kaboni Savage Gang] investigation was not mentioned" at the SIS meetings).

18

which a reasonable person would have known. " 90 Courts look to whether the ~acts shol

"make

out a violation of a constitutional right," and "whether the right at issue was 'clearly established'
at the time of defendant's alleged misconduct."91 A right is "clearly established" whe1 its
contours are "sufficiently clear that a reasonable official would understand that what hr is doing
violates that right." 92 "Courts need not evaluate the two prongs sequentially," and the ailure of
either prong will result in the official being entitled to qualified immunity. 93
Plaintiff has pointed to evidence showing that certain prison officials acted wit
deliberate indifference in failing to protect him from harm by placing him in the recreation pen
with Northington, and therefore that a violation of his Fifth Amendment substa,ntive d
rights occurred. Furthermore, the Third Circuit has concluded that "Bistrian-;as an i

ate who

at all relevant times was either not yet convicted or convicted but not yet sentenced-,ad a
clearly established constitutional right to have prison officials protect him froll} inmate!
violence." 94 Defendants, therefore, are not entitled to qualified immunity on this clail.

B.

COUNT Ill: FIFTH AMENDMENT SUBSTANTIVE DUE PROCESS ~PUNITIVE
DETENTION)
.

In Count III, Plaintiff raises a claim against the 10 Prison Management Defend. nts,
alleging that his detention in administrative segregation deprived him of his clearly est blished
liberty interest to be free from punishment before sentencing, in violation of the Fifth
Amendment's Due Process Clause. The Third Circuit limited Plaintiffs punitive dete tion claim
90

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 451 U.S. 800, 818 (19 2))
(internal quotation marks omitted).

91

Id. at 232 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

92

Wilson v. Layne, 526 U.S. 603, 615 (1999) (internal quotation marks and citations omitted).

93

Karns v. Shanahan, 879 F.3d 504, 520 (3d Cir. 2018) (citing Pearson, 555 U.S. at 236; James v. City of WilkesBarre, 100 F.3d 675, 679 (3d Cir. 2012)).

94

Bistrian, 696 F.3d at 367.

19

so that it might only apply to: (1) his first detention in the SHU; (2) his second:detenti,n in the
SHU until the beginning of the note-copying operation; and (3) his fourth deteljltion in the SHU.
The Third Circuit held that convicted inmates who are imprisoned pending sen lencing are
I

.

accorded the status of a pretrial detainee, with protected liberty interests that ar¢ "firml
grounded in federal constitutional law."95 These protected liberty interests indude the right to be
!

free from punishment. 96 "[A] particular measure amounts to punishment whe~ there is a
showing of express intent to punish on the part of detention facility officials, 1hen the estriction
or condition is not rationally related to a legitimate non-punitive government p}lrpose, r when
!

the restriction is excessive in light of that purpose. ,m "In evaluating a pretrial detaine 's claim
of unconstitutional punishment, courts must examine the totality of the circumstances

ithin the

institution. " 98

1.

Plaintiff's First Confinement in the SHU Was Not P .. nitive
!

Plaintiff contends that his first period of confinement in the SHU (from Nove

er 18,

1

2005 to January 9, 2006) amounts to punitive detention in violation of his Fifth Amen ment right
to due process. Despite making all reasonable inferences in Plaintiffs favor
party, this first SHU confinement was not excessive and did not violate his

a~

the no

co~stitutio

The evidentiary record indicates that on November 18, 2005, Plaintiff 'fas tran ferred
from the general population to the SHU because he abused his telephone privi~eges. Djree days
later, he was provided with a copy of the incident reports of his prior telephone abusesJ 99 A

95

Bistrian, 696 F.3d at 373 (quoting Cobb v. Aytch, 643 F.2d 946, 962 (3d Cir. 1981) (en bane;)).

96

Bell, 441 U.S. at 536-37.

97

Bistrian, 696 F.3d at 373 (quoting Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007)).

98

Id. (internal quotation marks and citation omitted).

99

Defs.' Proposed Statement of Undisputed Facts at if 60; Pl. 's Proposed Statement of Undisputed Facts at if 154.

20

hearing was held on November 30, 2005, where Plaintiff admitted to placing several
unauthorized telephone calls.

100

On December 9, 2005, the DHO imposed penalties

Plaintiff's violations, including 30 days of disciplinary segregation. Plaintiff

fof

b~gan se

ing the

30-day disciplinary segregation immediately and was released from the SHU on·:·' Januat 9, 2006.
Although the propriety of the 30-day disciplinary segregation is not at issue, Pl· intiff
contends that the initial period of confinement up until the date the DHO

impo~ed

the bove-

mentioned penalties (a three week period from November 18, 2005 to December 9, 20 5) was

of that purpose. 101

t

However, the record demonstrates that Plaintiffs initial transfer to administrati e
segregation was rationally related to the legitimate non-punitive government purpose
addressing Plaintiffs suspected misconduct committed in violation of BOP

rul~s.

Ensring that

detainees and inmates comply with BOP rules is important to maintaining a secure, si, and
functional detention facility. 102 Telephone violations, however classified, are ~erious Hlecause
breaking these rules may allow contraband to enter the FDC, or other crimes to occur

ithin the

facility. 103 As the Third Circuit has noted, courts are "unwilling to substitute [their] ju gment on
1

100

Pl. 's Proposed Statement of Undisputed Facts at iii! 160-61.

101

Plaintiff also asserts that he should have received credit for the days he had already been in ,the SHU ·n
calculating his 30-day disciplinary segregation.
102

Allowing an inmate to violate BOP rules without consequence will not help prison officials maintain a secure
environment.
1

I0

3

In Bell, the Supreme Court explained:
The Government also has legitimate interests that stem from its need to manage the f~cility in hich the
individual is detained. These legitimate operational concerns may require administrative measfes that go
beyond those that are, strictly speaking, necessary to ensure that the detainee shows up at trial. For
example, the Government must be able to take steps to maintain security and order at!the instit tion and
make certain no weapons or illicit drugs reach detainees. Restraints that are reasonab~y relatedlto the
institution's interest in maintaining jail security do not, without more, constitute unconstitutional
punishment, even if they are discomforting and are restrictions that the detainee would not havb
1

21

these difficult and sensitive matters of institutional administration and security for that of the
persons who are actually charged with and trained in the running of such facilities." 104 Thus,
there is no evidence that the three week administrative segregation was not ratipnally r lated to a
legitimate, non-punitive purpose.
The record also shows that the duration of Plaintiffs first stint in the SBU was rot
excessive in light of that purpose. Once Plaintiff was placed in administrative i;egrega,ion,
prison officials proceeded to adjudicate his telephone violations within three "leeks. Printiff
was apprised of the allegations against him, and was afforded the opportunity to be herd at a

hearing shortly thereafter. Plaintiff's suggestion that this three week period

w~ excesre,

during which his violations were adjudicated, is not supported by the record, aJild does rot create
a genuine dispute of material fact. Summary judgment will be granted as to this claimf 1° 5

experienced had he been released while awaiting trial. We need not here attempt to d;etail the Jrecise extent
of the legitimate governmental interests that may justify conditions or restrictions of pretrial defention. It is
enough simply to recognize that in addition to ensuring the detainees' presence at tria~, the effeftive
management of the detention facility once the individual is confined is a valid objecti~ethat miy justify
imposition of conditions and restrictions of pretrial detention and dispel any inference.• that sucl restrictions
'
are intended as punishment.
441 U.S. at 540 (citations omitted).
104

Stevenson, 495 F.3d at 7l(quoting Block v. Rutherford, 468 U.S. 576, 588 (1984)) (internal quotatio1marks
omitted).
105

In this case, the Third Circuit stated: "Given Appellants' failure to assert any legitimate, non-punitiv need for
the segregation, Bistrian has plausibly alleged that it was excessive to keep him in the SHU fol; nearly a month while
awaiting a hearing on seemingly minor telephone infractions." Bistrian, 696 F.3d at 374. Discovery in ~his case has
shown, however, that Defendants were appropriately adjudicating Plaintiffs telephone violati~ns during this period.
Moreover, Defendants articulated a legitimate, non-punitive need for the segregation during this proces
1

•

22

2.

Defendants Are Entitled to Qualified Immunity with iRespect to
Plaintiff's Second Period of Confinement Up Until His Parti I ipation
in the Note-Passing Scheme

Next, Plaintiff contends that his second period of confinement in the SHU up u til he
!

began participating in the note-passing scheme (from January 25, 2006 to aroupd Apri or May
of 2006) amounts to punitive detention in violation of his substantive due procyss right!.
The facts show Plaintiff violated BOP rules shortly after his first release from tfe SHU
by placing unauthorized telephone calls to his former girlfriend. Plaintiffs telephone lbuses
occurred within one month after returning to the general population, and thereafter d1onstrated
to prison officials that he was either unwilling or incapable of following BOP llUles while in the
general population, undermining the prison officials' attempts to maintain an orderly detention
center. Therefore, Plaintiff was removed from the general population and tran1ferred Jack to the
SHU on January 25, 2006.

106

Plaintiff contends that the approximately three to four month period (from Janfary 25,
2006 to April or May of 2006) when he was confined to the SHU was not rationally re ated to a
legitimate non-punitive government purpose, or was excessive in light of that purpose.
Defendants argue that this second period of confinement was rationally related to the l · gitimate
non-punitive government purpose of addressing Plaintiffs continued miscondlflct and ecuring
the FDC, and that the three-to-four month period was not excessive in light of this p,ose. In
the alternative, Defendants argue that they are entitled to qualified immunity with respect to this
period of confinement. The Court agrees with Defendants on qualified immui¥ty gro I ds.

106

Pl. 's Proposed Statement of Undisputed Facts at if 172.

23

Courts consider two prongs to determine whether prison officials are eQ.titled tol qualified
immunity: ( 1) whether the facts shown make out a violation of a constitutional right, a1d (2)
whether the rigM at issue was clear! y established.

107

The failure of either pron~ will rerult in the

official bemg entitled to qualified immumty. 108 Here, Plamt1ffhas not shown that he had a
clearly established right to be removed from the SHU within the three-to-four ip.onth ,riod after
his continued violation of BOP rules. The Court of Appeals has stated that "B¢ll provitles scant
I

guidance on what constitutes punishment." 109 Although in the earlier appeal of this ca e, the
Third Circuit acknowledged the exhaustive examinations it has undertaken in interpret ng Bell's
"no-punishing-pretrial detainees" rule, 110 neither the Court of Appeals nor the Supre, Court
had clearly established the right that Plaintiff claims was violated in this case. 111 Sum , ary
judgment will be granted on this claim.

107

Karns, 879 F.3d at 520 (citations omitted).

108

Id. (citation omitted).

109

Hubbard v. Taylor, 538 F.3d 229, 236 (3d Cir. 2008) (internal quotation marks and citations omitted).

110

Bistrian, 696 F.3d at 373 (citing cases).

.

111

I

For example, in Hubbard, the Court of Appeals held that the triple celling of pretrial detainees was rationally
related to a legitimate government interest of trying to manage the overcrowded conditions at the correchonal
institution, was not excessive in light of that interest, and was not intended to punish the plaintiffs. Hub~ard v.
Taylor, 538 F.3d at 231-36. Moreover, in Fuentes, the Third Circuit found that the placement ofa convtcted but
unsentenced inmate in a restraint chair for eight hours following a disturbance did not violate ~ubstantivf due
process, as there was no evidence suggesting that use of the restraint was done maliciously or to cause harm, and
where the inmate was not kept in the restraint chair for longer than had been authorized. Fuentes v. Wasner, 206
F.3d at 345-46. Most analogous to this case, however, is Stevenson, in which the district court' held tha~I~ pretrial
detainee's placement in the SHU for more than a year after considering the severity of the crirtles for w~·ch he was
charged and after he was involved in a fight while incarcerated was rationally related to the legitimate g vernment
purpose of maintaining his safety, as well as the security of the prison, was not excessive in lightofthat purpose,
and was not intended to punish the detainee. Stevenson v. Carroll, No. 04-139, 2011 WL 684:2955, at* -11 (D.
Del. Dec. 29, 201 I), ajf'd, 474 F. App'x 845 (3d Cir. 2012). Like the court in Stevenson, this Court co;ludes that
Plaintiffs three-to-four month administrative segregation was rationally related to the legitima;te gove
ent
purposes of maintaining the security of the detention center, that the segregation was not excessive in Ii ht of that
purpose, and that there was no intent to punish Plaintiff related to this period of administrative: segregation. Thus,
this claim will be dismissed.

24

3.

There is a Genuine Dispute of Material Fact Regardiµg Whieher
Plaintiff's Fourth Period of Confinement in the SHU Was P nitive

Finally, Plaintiff asserts that his fourth period of confinement in the SHU was

I

nitive in

nature and violated his constitutional rights. As previously noted, "a particular1 measuT amounts
to punishment when there is a showing of express intent to punish on the part qf detentl' on
facility officials, when the restriction or condition is not rationally related to a fogitima e nonpunitive government purpose, or when the restriction is excessive in light of that purpose." 112
Plaintiff contends that he has identified evidence suggesting that the IO; Prison
Management Defendants expressly intended to punish him by placing him in t~e SHU or the
fourth time after learning of his complaints about his treatment at FDC

Philade~phia,

ich he

made to the Court during his criminal sentencing hearing. Although Plaintiff c;ontends that all 10
Prison Management Defendants should be held liable for this claim, he points \o eviderce in the

record which suggests that only Jezior and Levi may have intended to punish h!im for

~is

protests. Specifically, Plaintiff identifies evidence that Jezior wrote an incident report ~hich
stated that Plaintiff violated BOP telephone rules one day after receiving an email fro

the

Government informing him that Plaintiff was complaining about his treatment at.FDC
Philadelphia to the Court. 113 Plaintiff also testified that Levi told him that he vyould " ever see
the light of day again" after his protests to the Court. 114 This evidence creates

a genui

e dispute

of material fact regarding whether Jezior and Levi expressly intended to punisb. Plainti, f for his
protests to the Court by placing him in the SHU for the fourth time. Summaryjudgme twill be

112

Bistrian, 696 F.3d at 373 (quoting Stevenson, 495 F.3d at 68).

113

Pl.'s Proposed Statement ofUndisputed Facts at~~ 374, 377.

114

Id. at~ 391.

25

denied with respect to Jezior and Levi on this claim, but it will be granted with!respect o the

. .
.(:':
remammg p.
nson M anagement Deiendants. 11s
Defendants Jezior and Levi Are Not Entitled to Qualified Immunity on Plaintifj s Punitive
Detention Claim Regarding His Fourth Period of Confinement in the SHU
I
Defendants contend they are entitled to qualified immunity with respect to Plairiff s
punitive detention claim. As noted, courts examine two prongs to determine wlii.ether prson
officials are entitled to qualified immunity: (1) whether the facts shown make out a vio ation of a
constitutional right, and (2) whether the right at issue was clearly established.

11 6
:

Here, Plaintiff

has pointed to evidence which suggests a violation of his substantive due proc~ss right o be free
from punishment "prior to an adjudication of guilt." 117 Moreover, this right is ~learly
established, as reasonable prison officials would understand that expressly intepding to punish an
inmate for his complaints made to a court is unconstitutional. 118 Therefore, Jezior and Levi are
not entitled to qualified immunity on Plaintiffs punitive detention claim with ~espect t · his
fourth period of confinement.

They are: Bergos, Blackman, Brown, Garraway, Gibbs, Knox, McLaughlin, and White. Pl~intiffhas not shown
though evidence in the record that these Prison Management Defendants were personally involved in, o~ knew of
and acquiesced to, the decision to transfer Plaintiff to the SHU for the fourth time after he comp la.ined a~out his
treatment at FDC Philadelphia. See Baraka v. McGreevey, 481F.3d187, 210 (3d Cir. 2007) (''A defenqant in a civil
rights action must have personal involvement in the alleged wrongs to be liable, ... and cannor be held ~esponsible
for a constitutional violation which he or she neither participated in nor approved .... ") (inte~al quotat~on marks
and citations omitted); see also Diaz v. Canino, 502 F. App'x 214, 219 (3d Cir. 2012) (affirmllhg dismissal of a
complaint because the defendant did not have the requisite personal involvement in the allegeq post-senJence
deprivations despite having found the plaintiff"guilty ofmisconduct'and sentenced him to 36Q days in [the
Restrictive Housing Unit]").
115

116

Karns, 879 F.3d at 520 (citations omitted).

117

Bell, 441 U.S. at 535 (citations omitted).

118

See Bistrian, 696 F.3d at 376 ("Retaliating against a prisoner for the exercise of his constit*ional rig ts is
unconstitutional.") (citing cases).

26

C.

COUNT V: FIFTH AMENDMENT PROCEDURAL DUE PROCESS

In Count V, Plaintiff raises a claim against the 10 Prison Management J!efend1ts and
Lieutenant Wilson, alleging that his placement and continued detention in the SHU d ing the
actionable periods failed to comply with the Fifth Amendment's procedural due process

j

requirements.
"Although pretrial detainees do not have a liberty interest in being

con~ned

in he general

prison populationi they do have a liberty interest in not being detained indefinitely int' e SHU
without explanation or review of their confinement." 119 Thus, procedural due process equires
prison officials to "provide detainees who are transferred into more restrictive housing ,] for
administrative purposes only[,] an explanation of the reason for their transfer a~ well a an
opportunity to respond." 120
1.

Plaintiff's Procedural Due Process Claim Fails with '-espect to His
First Period of Confinement in the SHU

First, Plaintiff contends that his procedural due process rights were vio~ated du ing his
first period of confinement in the SHU. As mentioned, on November 18, 2005.i, Plaintirf was
1

transferred from the general population to the SHU because he abused his telephone
pnvileges.

121

Three days later, Plaintiff was provided with a copy. of the incidept rep~Tofhis

pnor telephone abuses, which gave him wntten notice of the disciplmary char$es bem · brought
against him. 122 In other words, Plaintiff was provided with an explanation of ~he reas ,n for his
placement in the SHU within three days of the transfer.

119

Stevenson, 495 F.3d at 69.

120

Id at 70.

121

Pl.'s Proposed Statement of Undisputed Facts at~ 157.

122

Id. at~ 154; Defs.' Proposed Statement of Undisputed Facts at~ 60.

27

A hearing on Plaintiffs telephone abuses was held shortly thereafter on Novelber 30,
2005, and Plaintiff admitted that he had violated BOP rules by placing several unauthorized
telephone calls to his former girlfriend using the account of another inmate. 123 ;On DeLmber 9,

2005, after the hearing, the DH0 imposed on Plaintiff the following penalties: !8 .5 ye+ of lost
telephone privileges, 30 days of disciplinary segregation, and 277 days of lost ~ood corduct
time.

124

Plaintiff began serving the 30-day disciplinary segregation and was su.bseque]tly
1

released from the SHU 30 days later, on January 9, 2006.
Plaintiff contends that the 10 Prison Management Defendants and Lieutenant Wilson

violated his procedural due process rights because they did not give Plaintiff a detentiot order
within 24 hours of his initial transfer and did not conduct reviews of his placeililent bet een
November 18, 2005 and December 9, 2005. These contentions, however, are without

erit.

expect," 125 and all that is required is an explanation for placement in the SHU and an o portunity
to respond. 126 Plaintiff was provided with both an explanation and an opportunity to r spond
during his first confinement in the SHU. This claim will be dismissed.

2.

Plaintiff's Procedural Due Process Claim Fails with Respect to His
Second Period of Confinement in the SHU

Second, Plaintiff argues that the 10 Prison Management Defendants and Lieuterant
Wilson violated his procedural due process rights during his second spell in the SHU.
discussed, Plaintiff entered the SHU for a second time on January 25, 2006

123

Pl. 's Proposed Statement of Undisputed Facts at iii! 160-61.

124

Id. at if 162.

125

Bistrian, 696 F.3d at 375 (citations omitted).

126

Id.

28

aft~r

It s

priso officials

discovered that he abused his telephone privileges again. 127 Plaintiff was informed that he was
.

I

being placed in administrative segregation "pending SIS investigation" for his phone arse.

128

Although Plaintiff did not immediately receive a copy of his detention order, he did refeive
copies of monthly SHU review forms, which explained "the basis for his continued

S~U housing

assignment." 129 Thus, there is no genuine dispute of material fact that Plaintifli was pr Ivided
I

with an explanation of why he was initially placed and was being held in the SBU. 130

laintiff

contends that he was not provided with an opportunity to respond, yet the record show that
Plaintiff could have filed a grievance challenging his placement in the SHU at any tim . In fact,
Plaintiff had filed grievances on other occasions, yet did not do so during this period. rnce
Plaintiff also had the opportunity to respond and challenge his administrative segregation, this
claim will be dismissed.

3.

Plaintiff's Procedural Due Process Claim Fails with Respect to His
Fourth Period of Confinement in the SHU

Last, Plaintiff contends that the 10 Prison Management Defendants and Lieute ant
Wilson violated his procedural due process rights during his fourth period of C<!mfinemlnt in the
SHU. As previously mentioned, on September 13, 2007, Plaintiff was removed from the general
population and placed in the SHU after prison officials documented that Plaintiff had lused his
telephone privileges by convincing another inmate to place unauthorized phone calls t

127

Pl. 's Proposed Statement of Undisputed Facts at ifif 172, 179.

128

Id at if 179.

129

I

Defs.' Proposed Statement of Undisputed Facts at if 122.

130

See Shoats v. Horn, 213 F.3d 140, 145-46 (3d Cir. 2000) (concluding that the prisoner received procldural due
process via periodic reviews and the right to be heard).

29
i
I
I

I

Plaintiff's sister. 131 The next day, Plaintiff received a hearing on this violation, during

I hich

Plaintiff was apprised of the charges against him and was given an opportunity: to resplnd to the
charges. 132 After the hearing, Plaintiff filed at least one grievance challenging his contrued
confinement in the SHU, but this grievance was denied. Plaintiff appealed the :decisiol' but after
considering the appeal, prison officials rejected this as well. 133 In light of this record, t ere is no
genuine dispute of material fact that Plaintiff was provided with an explanatio~ for his
placement in the SHU and an opportunity to respond. This claim will be dismi,ssed.

Defendants Are Entitled to Qualified Immunity on the Procedural Due Process Claim
Defendants argue that they are entitled to qualified immunity on Plaintiffs pro!edural
due process claim. Courts examine two prongs to determine if prison officials are enti led to
1

qualified immunity: (1) where the facts shown make out a violation of a constitutional ight, and
(2) whether the right at issue was clearly established. 134
In this case, Plaintiff contends that the Third Circuit's recent decision

rn Williar v.

Secretary, Pennsylvania Department ofCorrections 135 sets the standard for what procis is
constitutionally required. In particular, Plaintiff asserts that Williams now reqq.ires: (1)
"[ w ]ritten notice of the reason for placement in administrative custody"; (2) "[ y ]ntitlejent to a

t

hearing ... within six days of the initial transfer to administrative custody"; and (3) " [ ]very
thirty days thereafter, the opportunity to be personally interviewed ... [to detetmine] whether the
I

131

Pl.'s Proposed Statement of Undisputed Facts at iii! 368-71; Defs.' Proposed Statement ofUndispute' Facts at if
190.
.
132

Pl. 's Proposed Statement of Undisputed Facts at if 380.

133

Id. at iii! 390-91, 394-95.

134

Pearson, 555 U.S. at 231.

135

848 F.3d 549 (3d Cir. 2017).

30

inmate should continue to be maintained in administrative custody." 136 Although thes,
requirements were taken from Pennsylvania Department of Correction policies . considled in the
earlier case of Shoats v. Horn,

131

it is important to note that the Court of Appeals in Shrts held

only that an inmate was entitled to periodic review of his confinement in admi11istrativf custody,
and did not find that this particular process was constitutionally required. The Third Ctrcuit
explained in the earlier appeal of this case that "the protections due to sentence? inmatrs [as
discussed in ... Shoats] provide a floor for what pretrial detainees may expect. Therefore, the
law was sufficiently clear prior to Stevenson that Plaintiff was entitled to an explanatioI[ and an
opportunity to challenge his confinement." 138 The comprehensive protections in Willi ms were
not clearly established before that decision, as the Court of Appeals stated.

139

J

Here, Plaintiff was provided with an explanation and an opportunity to ¢hallen e his
confinement, either through grievance or a hearing, each time he was placed in the SHrl .
Therefore, as explained above, there is no constitutional violation and Defendants are ntitled to
qualified immunity. Even if Williams now sets the floor for what process is constitutiolally
required when inmates are placed in administrative custody or solitary confinement, thf process
described in this case was not clearly established before 2008, when Plaintiff was housed at FDC
Philadelphia and periodically placed in the SHU. Because "existing precedentmust hJe placed
the statutory or constitutional question beyond debate," 140 Defendants are entitled to qlalified
immunity on the procedural due process claim.

136

PJ's Resp. to Individual Defendants' Mot. for Summ. J. at 13.

137

213 F.3d 140 (3d Cir. 2000).

138

Bistrian, 696 F.3d at 375 (Stevenson, 495 F.3d at 69).

139

See Williams, 848 F.3d at 570 ("[W]e are not prepared to conclude that Shoats was sufficient to clearly establish
I
Plaintiffs' due process interest in avoiding confinement on death row.").
140

Id. (quotingAshcroftv. al-Kidd, 563 U.S. 731, 741 (2011)).

31

D.

COUNT X: FIRST AMENDMENT (RETALIATION)

In Count X, Plaintiff alleges that the 10 Prison Management Defendants placed him in
the SHU for the fourth time in retaliation for protesting his prior SHU confinements at is
sentencing hearing, in violation of his rights under the First Amendment.
"Retaliating against a prisoner for the exercise of his constitutional rights is
unconstitutional." 141 To establish a retaliation claim, the prisoner must show that: (I) ,e was
engaged in constitutionally protected conduct; (2) he suffered some adverse

ac~ion

at tje hands

of pris~n officia'.s'. and (3) his consti~utio~ally protected c~nd~ct ~as a substantial or.1otivating
factor m the dec1s10n to take that action. 1 2 "Because mot1vat10n 1s almost never subJer to proof
by direct evidence, [the prisoner] must rely on circumstantial evidence to prove a retaliatory
motive." 143 He can satisfy his burden with evidence of either: (a) "an unusually suggejtive
temporal proximity between the protected activity and the allegedly retaliatory~action,' or (b) "a
pattern of antagonism coupled with timing that suggests a causal link." 144
First, Plaintiff has shown that his conduct was constitutionally protected. On Ptaintiff s
behalf, counsel challenged Plaintiffs repeated confinement in the SHU, and such a challenge is
constitutionally protected. 145

141

Bistrian, 696 F.3d at 376 (citations omitted).

142

Rauser v. Horn, 241F.3d330, 333-34 (3d Cir. 2001).

143

Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016).

144

Id. (citing Lauren W ex rel. Jean W v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).

145

See Watson, 834 F.3d at 422 (finding that the plaintiff engaged in constitutionally protected activity fhen he filed
a grievance against a corrections officer); see also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir'. 2003) C9oncluding
that filing a grievance "implicates conduct protected by the First Amendment"). Here, the Co~rt conclu~es that a
prisoner's protests or complaints about his treatment at a detention center made to a Court during a crim'nal
sentencing hearing is sufficiently similar to the filing of grievances and implicates conduct pro,tected by the First
Amendment.

32

Second, Plaintiff argues that his detention in the SHU for the fourth time was

1

adverse

action t~at he su~fered because his co~sel chal~enge~ his earlier ad~inistra~ive segregj1'.on and
complamed of lns treatment .at FDC Plnladelplna dunng .the sentencmg heanng. The tud

.

Circmt has explamed that this "adverse act10n" element 1s a fact quest10n: "whether placement m
the SHU was 'sufficient to deter a person of ordinary firmness from exercisinghis co,titutional
rights' is an objective inquiry and ultimately a question of fact." 146 In Allah v. Seiverling, 147 the

resul~ed, intJ alia, in
reduced access to phone calls, reduced access to the commissary, reduced acce~s to redreation,
Third Circuit held that where "confinement in administrative segregation

[and] confinement in his cell for all but five hours per week," "[a] fact finder could co,clude
from those facts that retaliatory continued placement in administrative confinement would deter
a person of ordinary firmness from exercising his First Amendment rights."

148
!

The Collrt finds

that Plaintiff has set forth evidence from which a reasonable fact finder might conclud that his
placement in the SHU for a fourth time was an adverse action to prevail on the retaliaf on claim.
Third, Plaintiff identified evidence demonstrating that his complaints at the se,Lncing
hearing were a substantial or motivating factor as to Defendants Jezior and Levi. As previously
noted, Plaintiff can satisfy his burden of showing motivation with either "an unusually
suggestive temporal proximity between the protected activity and the allegedly retaliairy
action," or "a pattern of antagonism coupled with timing that suggests a causal link." 14 Here,
the record shows that one day after the FDC was notified of Plaintiffs complaints ma e during
the sentencing hearing, Jezior wrote an incident report documenting Plaintiff s•telephol e

146

Bistrian, 696 F.3d at 376 (quoting Rauser, 241 F.3d at 333).

147

229 F.3d 220 (3d Cir. 2000).

148

Id. at 225 (internal quotation marks and citation omitted).

149

Watson, 834 F.3d at 422 (citation omitted).

33

violations. 150 In addition, Plaintiff alleges that Levi told him that "he would rn;ver see re light

of day again."

151

Although Levi denies ever saying this to Plaintiff, this is a disputedl. sue of

fact that cannot be resolved on summary judgment. This record supports the iriference that
Jezior and Levi were motivated to place Plaintiff in the SHU after being notified that laintiff
was complaining about his treatment at FDC Philadelphia to the Court.
Summary judgment therefore is not appropriate with respect the retaliation claim against
Jezior and Levi. However, summary judgment is warranted as to the remaining Defenhants,

152

because Plaintiff has failed to point to any evidence in the record suggesting that these
individuals were personally involved in, or knew of and acquiesced to, the decision tollace
Plaintiff in the SHU for the fourth time for any retaliatory motive or purpose. 153
Defendants Jezior and Levi Are Not Entitled to Qualified Immunity on (he Ret liation
Claim
Defendants argue that they are entitled to qualified immunity with respect to

P~aintiff s

retaliation claim. 154 Here, Plaintiff has pointed to evidence which suggests a violation of his
First Amendment right to protest his prior treatment at FDC Philadelphia. In addition, the right
to protest, or to challenge conditions of incarceration, is clearly established under the irst

Pl. 's Proposed Statement of Undisputed Facts at ii 374. See Estate of Smith v. Marasco, 318 F.3d 49~, 512-13
(3d Cir. 2003) (explaining that the Third Circuit has held that an inference can be drawn "where two days passed
between the protected activity and the alleged retaliation, ... but not where 19 months had elapsed") (citing Jalil v.
Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)).
150

151

Pl.'s Proposed Statement of Undisputed Facts at ii 391.

152

Summary Judgment will be granted on this claim as to these remaining defendants: Brown, Blackmar, Knox,
McLaughlin, Garraway, Gibbs, Bergos, and White.
·
153

Baraka, 481 F.3d at 210.

154

As discussed, courts consider two prongs to determine whether prison officials are entitled to qualifird immunity:
( 1) whether the facts shown make out a violation of a constitutional right, and (2) whether the right at is ue was
clearly established. Pearson, 555 U.S. at 231 (citation omitted).
1

34
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I

I

Amendment, and it is unconstitutional to retaliate against an inmate for doing So. 155 T us, Jezior
and Levi are not entitled to qualified immunity with respect to the retaliation claim.
E.

COUNT XV AND COUNT

XVI AGAINST THE UNITED STATES

Count X and Count XVI allege that the United States is liable under the FTCA for the
prison officials' negligence in failing to protect Plaintiff from the two assaults. The U ited
States argues that the discretionary function exception to the FTCA bars the two claimls.
Pursuant to the FTCA, the United States has waived its sovereign immFty fot certain
types of suits. 156 However, under the discretionary function exception, the FTCA's waiver of
sovereign immunity does not apply to claims based upon a government employee's etrcise or
performance, or failure to exercise or perform, a discretionary function or dut~. 157 Th purpose
of the discretionary function exception is "to prevent judicial

'second-guessin~'

1

of legrative

and administrative decisions grounded in social, economic, and political policy." 158 Crurts
conduct a two-part test to determine whether the discretionary function exception applies in a
particular case. First, a court must ask whether "the act giving rise to the alleged inji ...
involves an element of judgment or choice. " 159 "Second, even if the challenged conduct involves
an element of judgment, the court must determine whether that judgment is of the kind that the
discretionary function exception was designed to shield." 160 "The focus of thHs] inqJry is not

155

See Bistrian, 696 F.3d at 376 ("Retaliating against a prisoner for the exercise of his constitutional ri hts is
i
unconstitutional.") (citing cases).
156

See 28 U.S.C. § 1346(b)(l).

157

28 U.S.C. § 2680(a).

158

Merando v. United States, 517 F.3d 160, 164 (3d Cir. 2008) (quotation omitted).

159

Id. (internal quotation marks and citation omitted).

160

Id. at 165 (internal quotation marks and citation omitted).

35

on the agent's subjective intent in exercising the discretion conferred by the statute or egulation,
but on the nature of the actions taken and on whether they are susceptible to policy analysis."

161

Count XV and Count XVI allege that the United States is liable under lhe FTCf for the
prison officials' negligence in failing to protect Plaintiff from the Northington jattack "as a
confidential informant" and from the Taylor assault. Plaintiff relies on 18 U.sf c. § 40rl 2, which
imposes a general duty on the BOP to provide for the care and safekeeping of inmates.
However, the Third Circuit has held that 18 U.S.C. § 4042 involves an

elemen~ ofjudJment or

choice by leaving the implementation of the duty to protect prisoners (includilg in the context of
inmate-on-inmate violence) to the discretion of the BOP.

162

It also establishet that "tr

judgment involved in this case-i.e., how to best protect one inmate from the leat oflattack by
another-'is the kind that the discretionary function exception was designed td shield.1" 163 Thus,
the discretionary function exception applies, and alleged violations of§ 4042 ke not actionable
I

.

i

'

'

under the FTCA.

I

With respect to Count XV, Plaintiff also asserts that an excerpt from th,~ SIS manual
i

I

imposes a non-discretionary duty on prison officials to protect confidential

inf~rmants

from

inmate violence. 164 However, the manual involves elements of judgment or c4oice by affording
I

prison officials with discretion to determine how to protect informants from inmate vi 'lence, just
I
!
!

161

United States v. Gaubert, 499 U.S. 315, 325 (1991).

162

Donaldson v. United States, 281 F. App'x 75, 77 (3d Cir. 2008).

163

Id. (quoting Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000)).

164

Plaintiff relies on the SIS Manual, which states: "Confidential Information is a primary means of gat ering
intelligence. The sensitivity inherent in this investigative tool mandates that staff protect the identity of the source.
The failure to do so could pose a serious threat not only to the personal safety of the informantl b'utto th;e security of
the institution to liability should the inmate be injured as a result of staff failure to protect the informant! If the
identity of the confidential source is compromised, immediate action shall be taken to protect the indivi' ual."
I

36

'

I

to this claim on this basis. In conclusion, summary judgment will be granted o~ Coun~ XV, but
will be denied on Count XVI with respect to the razor collection policy PlaintJf has idlntified.
!

IV.

CONCLUSION

For the reasons set forth above, the motion for summary judgment file~ by the rison
officials will be granted in part and denied in part, and the motion to dismiss, qr in the alternative
for summary judgment, filed by the United States will be granted in part and d~nied in part. An
Order follows.
For clarity, the following claims against the following Defendants rem~in:

•

Count I: Fifth Amendment Substantive Due Process (Failure toj Protec )
•

Claim: Defendants were deliberately indifferent to the risk nosed b Iplacing
Plaintiff in the same locked recreation pen as Northington cifd his grg.

•

Defendants (8): Senior Officer Bergos, Senior Officer Bo~s, Lt. ~bbs,
Senior Officer Jezior, Warden Levi, Special Investigative Agent MolLaughlin,
Lt. Robinson, and Lt. Rodgers
1

•

Count III: Fifth Amendment Substantive Due Process (Punitive Detentil!ion)
•

Claim: Plaintiffs fourth detention in the SHU deprived him ofhis liberty
interest, as an inmate awaiting sentencing, to be free from phnishmdnt.
I
1

I

•

•

Defendants (2): Warden Levi, Senior Officer Jezior.

Count X: First Amendment (Retaliation)
•

•

•

Claim: Plaintiffs placement and continued detention in SH\J after His attorney
challenged Plaintiff's previous placement was retaliatory fof exerci~ing his
First Amendment rights.
Defendants (2): Warden Levi, Senior Officer Jezior.

Count XVI: FTCA Negligence Claim (Failure to Protect from r\ssault)
•

Claim: The United States of America negligently failed to ptotect Plaintiff
from the Taylor assault by failing to collect a razor issued ttj Taylor.I

•

Defendant: The United States of America

38