Vasquez v. U.N.I.C.O.R. Prison Industries et al

Filing 51

ORDER 1. The Report and Recommendation of Chief Magistrate Judge Carlson(doc. 10) is ADOPTED to the extent that it recommends that the Plaintiffs claims be dismissed but REJECTED to the limited extent that the R&R recommends non-prejudicial dismissa l with respect to the Plaintiffs FTCA claims. 2. The Defendants Motion to Dismiss, or in the alternative, Motion for Summary Judgment (doc. 32) is GRANTED. The Plaintiffs claims under the Federal Tort Claims Act are DISMISSED with prejudice. The Plai ntiffs Bivens claims premised upon alleged violations of the Eighth Amendment are DISMISSED without prejudice. 3. The Plaintiff is GRANTED leave to amend his Bivens claims withintwenty (20) days of the date of this Order to the extent that there arefacts which, if true, support those claims. If the Plaintiff does not filean amended pleading in that time, the Clerk will close this case.(eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERTINO VASQUEZ,
Plaintiff,
v.
UNICOR, et al.,
Defendant.

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1:12-cv-0366

Hon. John E. Jones III
Hon. Martin C. Carlson

MEMORANDUM & ORDER
March 19, 2013
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation
(“R&R”) of Chief Magistrate Judge Martin C. Carlson (doc. 50), filed February 26,
2013, which recommends that we grant the Defendants’ Motion to Dismiss, or in
the alternative, Motion for Summary Judgment (doc. 32) and dismiss the Plaintiff’s
Amended Complaint (doc. 11) without prejudice. Objections were due on or before
March 15, 2013 and to date none have been filed. Thus, this matter is ripe for our
review. For the reasons stated herein, we shall adopt the R&R to the extent that it
recommends dismissal of Plaintiff’s FTCA and constitutional claims but reject it to
the extent that it might be read to conclude that leave to amend be granted with
respect to the procedurally-barred FTCA claims.

I.

STANDARD OF REVIEW
When, as here, no objections are made to a magistrate judge’s report and

recommendation, the district court is not statutorily required to review the report
before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the
Third Circuit, however, “the better practice is to afford some level of review to
dispositive legal issues raised by the report.” Henderson v. Carlson, 812 F.2d 874,
878 (3d Cir. 1987). “[T]he court need only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.” Fed. R. Civ. P.
72(b), advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating
“the failure of a party to object to a magistrate's legal conclusions may result in the
loss of the right to de novo review in the district court”); Tice v. Wilson, 425 F.
Supp. 2d 676, 680 (W.D. Pa. 2006); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa.
1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). The Court’s
examination of this case confirms the Magistrate Judge’s determinations.
II.

DISCUSSION
Pro se Plaintiff Robertino Vasquez (“Vasquez”) filed a Complaint (doc. 1) on

February 27, 2012, alleging both Bivens1 claims and institutional negligence claims

1

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388

(1971).
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pursuant to the Federal Tort Claims Act (“FTCA”). The claims are asserted against
various medical and non-medical prison staff and UNICOR Federal Prison
Industries, a wholly owned United States government corporation that uses labor
from the United States Bureau of Prisons to produce goods and services. Vasquez
filed an Amended Complaint (doc. 11) on April 4, 2012 and a supplement thereto
(doc. 21) on May 7, 2012. Vasquez’s claims arise from a prison industrial accident
that occurred on May 19, 2011 in the UNICOR factory at LSCI Allenwood. On that
day, a brush that Vasquez was using to clean a cold press glue machine became
lodged in the machine’s roller, the ultimate result being that Vasquez’s hand was
pulled through the machine, crushing his arm and causing extensive damage.
According to Vasquez’s pleadings, the Defendants failed to properly train
him to operate the machinery and failed to provide appropriate medical treatment.
Specifically, Vasquez alleges that he was to receive training from prison staff on
how to safely and properly clean the glue machine but was trained by a fellow
inmate instead. Vasquez also asserts that several of the Defendants observed and
sanctioned his cleaning method without correcting it. Vasquez alleges that he was
denied an MRI or treatment from an outside neurologist and received only five
physical therapy sessions despite the damage to his arm. Vasquez avers that he was

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then fired by UNICOR and denied workers’ compensation, and that the incident
report placed full blame for the incident on him.
Magistrate Judge Carlson first addressed the Defendants’ administrative
exhaustion arguments and concluded that Vasquez’s FTCA claim is procedurally
barred by operation of the Inmate Accident Compensation System. As Judge
Carlson cogently and correctly observed, the United States Supreme Court has held
that the Inmate Accident Compensation System, 18 U.S.C. § 4126, is the exclusive
remedy for federal inmate work-related accidents and injuries. United States v.
Demko, 385 U.S. 149, 152 (1966) (“[R]ecovery under the prison compensation law
is exclusive.”). Accordingly, adjudication of Vasquez’s FTCA claim in any district
court is premature.
Judge Carlson also concluded that Vasquez has failed to state a viable Eighth
Amendment claim under Bivens because his pleadings do not establish the requisite
level of deliberate indifference by any individual Defendant. Applying the Eighth
Amendment benchmarks articulated in Fuentes v. Wagner, 206 F.3d 335, 344-45
(3d Cir. 2000), Judge Carlson concluded that Vasquez’s allegations fall well short
of establishing that any Defendant possessed the requisite state of mind to fall
within the constitutional zone of protections. Accordingly, the R&R recommends

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dismissal of these constitutional claims as a result of Vasquez’s failure to establish
an essential element thereof.
As we have already noted, neither party has filed objections to the R&R.
Upon review of the parties’ submissions, we agree with the sound reasoning that led
the Magistrate Judge to the conclusions reached in the R&R, and we will adopt the
R&R to the extent it recommends dismissal of Vasquez’s claims.2 We disagree with
Judge Carlson’s recommended disposition to the limited extent that the R&R can be
read to conclude that dismissal without prejudice is appropriate on both the
constitutional and FTCA claims. In light of the comprehensive exhaustion bar
established by the Inmate Accident Compensation System, we cannot conclude that
any amendment could cure the deficiencies of this claim. Accordingly, leave to
amend is granted only as to the Eight Amendment Bivens claims, consistent with
the rule of Fletcher-Hardee Corp., 482 F.3d 247, 253 (3d Cir. 2007) (“In civil
rights cases district courts must offer amendment . . . unless doing so would be
inequitable or futile.”).

2

With a mind towards conserving judicial resources, we will not rehash the reasoning of
the Magistrate Judge in full; rather, we will attach a copy of the R&R to this document, as it
accurately reflects our consideration and resolution of the case sub judice.
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NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

The Report and Recommendation of Chief Magistrate Judge Carlson
(doc. 10) is ADOPTED to the extent that it recommends that the
Plaintiff’s claims be dismissed but REJECTED to the limited extent
that the R&R recommends non-prejudicial dismissal with respect to the
Plaintiff’s FTCA claims.

2.

The Defendants’ Motion to Dismiss, or in the alternative, Motion for
Summary Judgment (doc. 32) is GRANTED. The Plaintiff’s claims
under the Federal Tort Claims Act are DISMISSED with prejudice.
The Plaintiff’s Bivens claims premised upon alleged violations of the
Eighth Amendment are DISMISSED without prejudice.

3.

The Plaintiff is GRANTED leave to amend his Bivens claims within
twenty (20) days of the date of this Order to the extent that there are
facts which, if true, support those claims. If the Plaintiff does not file
an amended pleading in that time, the Clerk will close this case.

s/ John E. Jones III
John E. Jones III
United States District Judge

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