Little et al v. Mottern et al
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 3/7/17. (rw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL R. LITTLE, et al.,
B. MOTTERN, et al.,
On May 19, 2014, Plaintiffs Michael R. Little and Kareem
H. Milhouse, inmates confined at the United States Penitentiary at
Lewisburg, Pennsylvania (“USP-Lewisburg”), filed the instant civil
rights action pro se pursuant to 28 U.S.C. § 1331, the Federal
Tort Claims Act (“FTCA”), and Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).1
The same day
1. 28 U.S.C. § 1331 states as follows: “The district court shall
have original jurisdiction of all actions arising under the
Constitution, laws, or treaties of the United States.”
The FTCA provides a remedy in damages for the simple
negligence of employees of the United States to protect federal
inmates. United States v. Muniz, 374 U.S. 150, 150 (1963). In
presenting a FTCA claim, a plaintiff must show: (1) that a duty
was owed to him by a defendant; (2) a negligent breach of said
duty; and (3) that the negligent breach was the proximate cause
of the plaintiff's injury/loss. Mahler v. United States, 196 F.
Supp. 362, 364 (W.D. Pa. 1961), aff'd 306 F.2d 713 (3d Cir.
1962), cert. denied, 371 U.S. 923 (1962). As a prerequisite to
suit under the FTCA, a claim must first be presented to the
federal agency and be denied by the agency.
Bivens stands for the proposition that "a citizen suffering
a compensable injury to a constitutionally protected interest
could invoke the general federal question jurisdiction of the
district court to obtain an award of monetary damages against the
the court issued its Standing Practice Order which advised Little
and Milhouse, inter alia, of their briefing obligations under the
Local Rules of Court. (Doc. Nos. 5, 6)
Attached to the Standing
Practice Order were copies of the pertinent Local Rules. Plaintiff
Little was authorized to proceed with this case under the in forma
pauperis provision of the Prison Litigation Reform Act (“PLRA”)2
and Defendants enumerated herein waived service of the complaint.
Plaintiff Milhouse was terminated from this action on
October 7, 2014, because he had three prior actions dismissed
under 28 U.S.C. § 1915(e)(2), and he could only proceed without
paying the full filing if he was under imminent danger of serious
physical injury. (Doc. No. 38.)
By memorandum and separate order
of September 2, 2015, the court determined that Milhouse was not
under imminent danger of serious physical injury at the time he
filed his complaint and dismissed Milhouse’s claims for failure to
pay the filing fee. (Doc. Nos. 116, 117.)
Milhouse filed a motion
responsible federal official." Butz v. Economou, 438 U.S. 478,
2. Because Plaintiffs’ complaint pertains to “prison
conditions,” the screening provisions, 28 U.S.C. § 1915(e)(2),
of the PLRA apply, given that Plaintiffs are prisoners proceeding
in forma pauperis. The court has an obligation to dismiss a
complaint or any part thereof under the PLRA screening provisions
“at any time the court determines” the complaint is frivolous or
malicious, fails to state a claim on which relief may be granted,
or seeks monetary relief against a defendant who is immune from
suit. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n. 6 (9th
Cir. 2000); 28 U.S.C. § 1915(e)(2)(B).
for reconsideration under Rule 60 of the Federal Rules of Civil
Procedure. Milhouse claimed that he did not have three strikes at
the time he filed this action.3
By order of April 26, 2016, the
court granted Milhouse’s Rule 60 motion. (Doc. No. 161.) The court
also denied without prejudice a pending motion to dismiss and/or
for summary judgment (Doc. No. 120) which only addressed Little’s
claims. (Id.) The court indicated that the Defendants could refile
within 60 days a motion which addressed both the claims of Little
and Milhouse. (Id.) On June 28, 2016, the court extended the
deadline for filing such a motion to July 11, 2016.4
The action is proceeding on the basis of a third amended
complaint filed by Little and Milhouse on September 2, 2014,
raising claims under Bivens and the FTCA. (Doc. No. 35.)
third amended complaint is handwritten in a small, rambling,
single-spaced script. (Id.) The third amended complaint focuses on
three groups of defendants. (Id.) It also primarily focuses on two
periods of time. (Id.)
The allegations in the third amended
complaint are disjointed.
The court will first list the
3. Although Milhouse only had one strike at the time he filed
this action, after June, 2014, Milhouse accumulated two
additional strikes: Milhouse v. Heath, Civil No. 15-00468
(M.D.Pa. filed Mar. 9, 2015); and Milhouse v. John Doe 1-3,
Judges of the Third Circuit Court of Appeals, Civil No. 16-146
(M.D. Pa. filed Jan. 27, 2016).
4. The discovery deadline under the Local Rules expired on March
2, 2015, six-months from the filing of the third amended
complaint. M.D.Pa. Local Rule 26.4. After the court reinstated
Milhouse as a party in this action, he did not seek an extension
of the discovery deadline.
defendants and then set forth the allegations in a chronological
and coherent manner.
The first group of defendants was allegedly involved in
incidents which occurred during May through August, 2014, and
consists of the following individuals employed at USP-Lewisburg:
(1) Brandon Mottern, Correctional Officer; (2) Hamsa Boussag,
Correctional Officer; (3) Jerald Loyek, Correctional Officer; (4)
Jeffrey Butler, Associate Warden; (5) J.E. Thomas, Warden; (6)
James Eck, Correctional Officer; (7) Daniel Dowkus, Lieutenant;
(8) James Diltz, Correctional Counselor; (9) Suzanna Heath,
Special Investigations Agent; (10) Frederick Entzel, Captain; and
(11) Brent Taggart, Deputy Captain.
(Id. at 1.)
The second group of defendants consists of the following
individuals employed at the United States Penitentiary at
McCreary, Pine Knot, Kentucky (“USP-McCreary”): (1) J.C. Holland,
Warden; (2) Angela Hubbard, Correctional Officer; and (3) Trinity
Middleton, Correctional Officer. (Id.)
The third group of defendants consists of the United
States and the Federal Bureau of Prisons. (Id.) The third amended
complaint does not set forth any allegations specifically directed
at the United States or the Federal Bureau of Prisons.
apparent basis for naming the United States is that it is
allegedly liable under the FTCA for wrongful acts committed by
prison staff at USP-Lewisburg and USP-McCreary.
court will summarily dismiss the case as it relates to the Federal
Bureau of Prisons because claims against a federal agency are not
cognizable under the FTCA or Bivens.
FDIC v. Meyer, 510 U.S. 471,
473 (1994); Dambach v. United States, 211 F. App’x 105, 108 (3d
Cir. Dec. 19, 2006); 28 U.S.C. § 2679(a).
With respect to the first group, it is alleged in the
third amended complaint that on May 7, 2014, when Defendant Diltz
was performing rounds at approximately 1:15 p.m. on the cell block
where Little was housed, Little asked him for an administrative
remedy form (BP-8) but Diltz denied the request. (Id. at 5.)
next day, May 8, 2014, at approximately 5:05 p.m., Defendants
Mottern, Boussag and Loyek came to the cell shared by Milhouse and
Little, and Mottern ordered them to “cuff up cock sucking rat
bastards . . . yeah I read y’all files.”
(Id. at 2.)
allege that Boussag then stated “Hurry Rats today” (Id. at 2, 4)
and Loyek also stated: “Y’all can’t hide here with all that
snitching. This Lewisburg. This ain’t SHU. Y’all at the Big
House.” (Id. at 3.)
Milhouse and Little claim that the statements
were “loudly [stated] on [the cell] tier and other inmates heard”
the statements and as a result other inmates began threatening
them and spreading the information to inmates in other cell
blocks. (Id. at 1.)
Milhouse claims that after he was removed from his cell
on May 8, 2014, that Mottern while escorting him to a shower
stated: “Do something guy. I’ll fuck you up.”
(Id. at 2.)
they approached the shower Milhouse claims Mottern pushed him
inside and stated: “I’ll roll you like a turd. . . This is a new
program with new lieutenants and new procedures . . . we don’t
Milhouse claims that Mottern locked the shower
and left but after 15 minutes returned with Boussag at which time
Milhouse states he was placed in paper clothes and then
Milhouse alleges that Boussag then “became
overly aggressive and belligerent” and stated “Fuck you, the
courts and your lawyer mother.” (Id.)
As the shower door was
opened, Milhouse claims that Boussag grabbed his penis and
testicles and stated: “I molest fagots like you little dick
Milhouse then claims he was slammed to the
floor by Mottern and Boussag, and Mottern sat on his back while
Boussag “stuck an object inside [his] rectum, and stated “cum now
Milhouse then alleges that Mottern
subsequently “fabricated [an] incident report which was
Little claims that when he was removed from the cell on
May 8, 2014, he was escorted to the shower area and Boussag patted
him down and squeezed his private parts and “boasted how [the]
government trained him, he got big guns (sic) and if he catch
(sic) Plaintiff(s) in Pennsylvania he’ll kill them.” (Id. at 4.)
After the incident of May 8, 2014, Plaintiffs allege
that they requested grievance forms from prison staff and
apparently attempted to file grievances. (Id. at 4-5.) The court
will subsequently review the alleged attempts by Plaintiffs to
file grievances after completing a review of their allegations
regarding being labeled as informants, verbal threats and being
The court will, however, review at this
point attempts at filing grievances where there were alleged
attempts by prison official to discourage such filing.
Little claims that on May 14, 2014, he submitted
sensitive administrative remedy forms to the Regional Office5
regarding the incident of May 8, 2014, but that those forms were
destroyed by Defendant Diltz. (Id. at 4-5.)
Little alleges that on May 15, 2014, he requested a
administrative remedy form from Defendant Diltz who was performing
rounds on the cell block where he was housed. (Id.)
alleges he needed the form to grieve incidents which occurred at
USP-McCreary and that Diltz denied the request and stated as
follows: “Fuck that start new. You not at McCreary no more! . . .
You keep fucking filing bullshit on staff!” (Id.)
5. 28 C.F.R. § 542.14(d) permits an inmate if he “reasonably
believes the issue is sensitive and the inmate’s safety or wellbeing would be placed in danger if the [Administrative Remedy]
Request became know at the institution, the inmate may submit the
Request directly to the appropriate Regional Director.” However,
this provision further provides that “[t]he inmate shall clearly
mark “Sensitive” upon the Request and explain, in writing, the
reason for not submitting the Request at the institution. If the
Regional Administrative Remedy Coordinator agrees that the
Request is sensitive, the Request shall be accepted. Otherwise,
the Request will not be accepted, and the inmate shall be advised
in writing of that determination, without a return of the
Request. The inmate may pursue the matter by submitting an
Administrative Remedy Request locally to the Warden. The Warden
shall allow a reasonable extension of time for such
that Diltz destroyed an administrative remedy form relating to the
May 8, 2014, incident and that his refusal to provide him with an
administrative remedy form was retaliatory in order to prevent him
from filing a civil complaint. (Id.)
Plaintiffs allege that (1) on May 18, 2014, at
approximately 9:30 p.m., Defendant Eck came to their cell and
stated as follows: “Y’all keep fucking telling the warden on my
coworkers sooner or later that shit gonna catch up to y’all!” (Id.
at 4) and (2) on May 19, 2014, Boussag approached their cell and
stated that it was their fault because they disrespected his
coworkers and further stated as follows:
So we just reacted and now your telling the fucking
warden, Region Director and Office of Inspector General.
That don’t mean shit. I gonna make you so miserable
that your (sic) going to kill yourself. Your (sic)
suicidal. I will fuck with your food, your mail
won’t go out. You won’t get the phone. I know inmates
is (sic) after you and I heard them threaten you,
because your (sic) a fucking rat. Sooner or later
y’all will be in the very same rec[reation] cage[.]”
(Id. at 2-3.)
Little alleges that on May 20, 2014, he requested an
administrative remedy form from Defendant Diltz who was performing
rounds on the cell block where he was housed. (Id. at 5.)
alleges Diltz denied the request and stated as follows: “I ain’t
giving you shit “Boy” to file on staff! Fuck your safety! Stop
Little further claims that Diltz refused to let
him file for protective custody “due to the rat label[.]” (Id.)
Little claims that on May 21, 2014, that he reported to
Defendant Heath the alleged misconduct of staff and the taunts and
threats he “gets from inmates” as the result of being labeled a
snitch. (Id. at 5-6.)
Little claims that Defendant Dowkus was
eavesdropping on that conversation and that subsequently Dowkus
approached Plaintiff Milhouse and stated as follows: “Find
yourself another cellmate. I’m moving Little.” (Id. at 6.)
then alleges that he was confronted by Dowkus who told him: “I’m
moving you on 3rd floor or general population with other inmates.
I know your whole case.  I been here a long time. I got a lot of
pull! You don’t know me.
you get stuff done.
You pointing the finger that’s not how
Now if you want to start pointing the finger
it will be hard.” (Id.)
Little claims Dowkus was threatening to
put him in a situation where he would be harmed because of he
reported alleged staff misconduct. (Id.)
Little claims that on May 23, 2014, he was approached by
Defendant Boussag who told him: “Your time is coming.”(Id. at 3.)
Little alleges that on May 30, 2014, he requested an
administrative remedy (BP-8) form from Defendant Diltz who was
performing rounds on the cell block where he was housed. (Id. at
Little alleges Diltz denied the request and stated as
follows: “Nigger! I ain’t giving you shit to file on staff!” (Id.)
Little alleges that subsequent to that statement a counselor by
the name of, J. Yayda, who is not named as a defendant, arrived at
his cell door at which time Little alleges he asked counselor
Yayda for an administrative remedy form (BP-8) because Diltz would
not give him one. (Id.) Little alleges that Yayda told him “that’s
between you two” and
Diltz subsequently asked Yayda “Is Little
still rat bitching?” (Id.)
Little claims that as a result of
referring to him as a “rat” he received taunts and threats from
other inmates. (Id.)
Little alleges that on June 5, 2014, he requested an
administrative remedy form from Diltz but the request was denied
and Diltz stated “I ain’t giving you shit to file on!” (Id.)
Little then alleges that a correctional officer by the name of
Klusner, who is not named as a defendant, “tried to coerce [him]
not to make more attempts to get [administrative remedy forms] to
file on Lewisburg staff” for the incident of May 8, 2014. (Id.)
Little alleges that Klusner stated that Little had “pissed a lot
of people off coming here, that’s why Diltz [refused] to give [him
administrative remedy forms].” (Id.)
Little further claims that
Klusner told him “just lay down and let this stuff go.” (Id.)
Little claims that on June 20, 2014, he was placed in a
recreation cage with other inmates and assaulted by those inmates
and that Defendant Boussag paid the inmates to assault him. (Id.
at 4.) Little also alleges that on the same day Boussag escorted
him to the basement for a haircut and during that encounter
Boussag stated: “Yeah you got your ass whooped I told you and
Milhouse that I will have your enemies put inside your
rec[reation] cage. Milhouse lucky he didn’t go out. Its (sic) more
days his turn coming. (sic)
Its (sic) far from over.” (Id.)
Little alleges that on June 23, 2014, he gave Diltz a
administrative remedy form (BP-8) relating to the sensitive
administrative remedy forms he submitted on May 14, 2014. (Id. at
Little also claims that on July 2, 2014, he gave Diltz a
administrative remedy form (BP-8) relating to the June 20, 2014,
Little claims he did not receive a reply with
respect to either the June 23 or the July 2, 2014, administrative
remedy forms, and that on July 15, 2014, he asked Diltz why he had
not received a reply and Diltz “confessed to destroying [the
administrative remedy forms].” (Id.)
The final allegation relating to assaultive behavior
relates to an incident which occurred on August 23, 2014. (Id. at
On that date at approximately 5:30 p.m., it is alleged that
Correctional Officer Hagenbunch, who is not named as a defendant,
approached Milhouse’s cell and told Milhouse and his cellmate6 to
submit to hand restraints. (Id.) Milhouse was then escorted to the
shower area at which point it is alleged that Boussag punched
Milhouse on the left side of his face and “mashed his face into
the shower stall gate, which caused a split over top his left eye
that bleed (sic) profusely.” (Id.)
After being returned to his
cell Milhouse claims he requested medical attention but a
correctional officer, who is not named as a defendant, denied the
The name of the cellmate is not given.
request and stated as follows: “I’m not calling medical so you can
get an assessment. I know how you make accusations in that
The court will now address the allegations by Plaintiffs
against Defendants who were not involved in the incidents where
Plaintiffs allegedly were labeled as informants, received verbal
threats and were assaulted physically.
Plaintiffs state that they sent requests to Warden
Thomas and Associate Warden Butler on May 8, 19 and 20, 2014, but
they did not respond to their requests. (Id. at 3.)
There are no
allegations that Warden Thomas or Associate Warden Butler were
involved in any of the alleged incidents of labeling Plaintiffs as
informants, verbal threats or assaultive behavior. (Id.)
Plaintiffs claim Defendant Heath “was well aware of
threats of bodily harm/snitch taunts to (Little) notifying Heath
in many request to staff via prison mail, verbally in initial
screening 4-28-14/5-21-14 in quay” and “Heath failed to
reply/protect plaintiff.” (Id. at 4.)
Likewise, Plaintiffs in a
conclusory manner claim that Defendants Entzel and Taggart were
well aware of the incidents. (Id.)
With respect to the second group of defendants, Little
claims that while confined at USP-McCreary that Defendant Hubbard
on December 24, 2013, fabricated an incident report. (Id. at 6.)
The incident report allegedly charged Little with masturbating
when Hubbard was doing rounds and appeared at Little’s cell door.
(Id.) Little claims that Hubbard asked Defendant Middleton to
remove him from the unit but that Little subsequently had the
incident report expunged based on a surveillance tap which
“prove[d] Hubbard lied[.]”(Id.) Little also appears to allege that
Middleton told District Columbia inmates that Little was an
informant which resulted in Little being assaulted at USPMcCreary. (Id.)
As relief Plaintiffs request compensatory and punitive
damages in the total amount of $120,000,00.00 and the issuance of
permanent injunction directing that they not be confined in a
federal facility and that defendants be prosecuted.7
(Id. at 7-
On June 20, 2016, Plaintiff Little filed a motion for
summary judgment and on June 27, 2016, a statement of material
facts and a supporting brief. (Doc. Nos. 165, 167, 168.)
11, 2016, Defendants filed motions to dismiss and/or for summary
judgment. (Doc. Nos. 174, 175.)
Supporting briefs, statements of
material facts and evidentiary materials were filed by Defendants
on July 25, 2016. (Doc. Nos. 178, 179, 180, 181.)8
On August 10,
2016, the court issued an order granting a motion for extension of
time filed by Defendants. (Doc. No. 185.)
The order provided that
7. The court has no authority to direct that the Plaintiffs be
housed in a non-federal facility or that the Defendants be
prosecuted. Consequently, those claims for injunctive relief
will be summarily dismissed.
8. The evidentiary materials included declarations under penalty
of perjury from Defendants Diltz, Holland, Hubbard, Middleton
Defendants would have fourteen (14) days from the date the court
decided Defendants’ motions to dismiss and/or for summary judgment
to respond to Plaintiff Little’s motion for summary judgment.
On August 12, 2016, Plaintiff Little filed a brief in
opposition to Defendants’ motion to dismiss and/or for summary
judgment. (Doc. No. 186.) Little’s brief consists of two pages and
does not respond to Defendants’ arguments. (Id.) Little also did
not respond to Defendants’ statement of material facts or present
any evidentiary materials in opposition to those submitted by
On August 29, 2016, Defendants filed a reply brief
(Doc. No. 194) with respect to Little’s brief in opposition.
On August 15, 2016, Plaintiff Milhouse filed a motion
for summary judgment and a supporting brief. (Doc. Nos. 189, 190.)
Milhouse did not file a statement of material facts in support of
his motion or any evidentiary materials.
On September 1, 2016,
Defendants filed a brief in opposition to Plaintiff Milhouse’s
motion for summary judgment. (Doc. No. 195.)
did not file a reply brief.
Consequently, Defendants’ motions to
dismiss and/or for summary judgment and Plaintiff’s Milhouse’s
cross-motion for summary judgment are ripe for disposition.9
9. The third amended complaint is not executed as an unsworn
declaration “under penalty of perjury” in accordance with 28
U.S.C. § 1746 and cannot be considered as evidence in opposition
to Defendants’ motions for summary judgment. Three Rivers
Confections, LLC v. Warman, – F. App’x – , 2016 WL 5335025 at *2
n.8 (3d Cir. Sept. 23, 2016); Hatcher v. SCM Group North America,
Inc., 167 F.Supp.3d 719, 729 (E.D. Pa. 2016); Crouse v. South
Lebanon Township, 668 F.Supp.2d 664, 669 n.5 (M.D.Pa. Oct. 22,
The Defendants filed a motion to dismiss and/or for
summary judgment with respect to Little’s claims (Doc. No. 174)
which became ripe on August 29, 2016, and a second such motion
(Doc. No. 175) with respect to Milhouse’s claims which became ripe
on August 17, 2016.
With respect to Little’s claims, Defendants argue that
the court should dismiss his claims or in the alternative grant
summary judgment in their favor for the following reasons: (1)
Little filed the complaint in this action on May 19, 2014, only
eleven days after the incidents involving the USP-Lewisburg
Defendant occurred, and consequently, he failed to exhaust
administrative remedies concerning his civil rights claims; (2)
Little filed no administrative tort claims concerning his claims
under the Federal Tort Claims Act before he commenced this
lawsuit; and (3) this court lacks personal jurisdiction over
Defendants Holland, Hubbard, and Middleton.
As stated above in
support of the motion with respect to Little’s claims, Defendants
filed a statement of material facts in accordance with Local Rule
That rule provides as follows:
A motion for summary judgment filed pursuant to
Fed.R.Civ.P. 56, shall be accompanied by a separate,
short and concise statement of the material facts,
in numbered paragraphs, as to which the moving party
contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment
2009); Kamuck v. Shell Energy Holding GP, LLC., 2015 WL 1345235,
at *15 (M.D.Pa. Mar. 25, 2015).
shall include a separate, short and concise statement
of the material facts, responding to the numbered
paragraph set forth in the statement required in the
foregoing paragraph; as to which it is contended that
there exists a genuine issue to be tried.
Statement of material facts in support of, or in
opposition to, a motion shall include references to
the parts of the record that support the statements.
All material facts
required to be served
to be admitted unless
required to be served
set forth in the statement
by the moving party will be deemed
controverted by the statement
by the opposing party.
M.D. Pa. LR 56.1 (emphasis added).
A standard practice order was
issued on May 19, 2014, which advised Little and Milhouse of the
requirements of several Local Rules of Court, including Local Rule
56.1. (Doc. Nos. 5, 6.)
Little did not respond to Defendants’
statement of material facts in accordance with Local Rule 56.1.
As for Milhouse’s claims, Defendants as stated filed a
motion to dismiss and/or for summary judgment along with a
statement of material facts.
Milhouse did not file a brief in
opposition or a response to Defendants’ statement of material
Defendants argue that the court should dismiss Milhouse’s
claims or in the alternative grant summary judgment in their favor
for the following reasons: (1) Milhouse failed to exhaust
administrative remedies with respect to his claims under Bivens;
and (2) with respect to the claims under the FTCA Milhouse failed
to exhaust the administrative tort claim procedure before he filed
For the reasons set forth below the motion to dismiss
Little’s claims against Defendants Holland, Hubbard and Middleton
for lack of personal jurisdiction will be granted, and summary
judgment with respect to the claims of Little and Milhouse will be
granted in favor of the United States and Defendants Mottern,
Boussag, Loyek, Butler, Thomas, Eck, Dowkus, Diltz, Heath, Entzel,
and Taggart. Furthermore, the motions for summary judgment filed
by Milhouse and Little will be denied.
Motion to Dismiss
Under Rule 12(b)(6), we must “accept all factual
allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir.2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224,
231 (3d Cir.2008)).
While a complaint need only contain “a short
and plain statement of the claim,” Fed.R.Civ.P. 8(a)(2), and
detailed factual allegations are not required, Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d
929 (2007), a complaint must plead “enough facts to state a claim
to relief that is plausible on its face.”
Id. at 570, 550 U.S.
544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d 929.
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
Ashcroft v. Iqbal, 556 U.S. 662,___, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556,
127 S.Ct. at 1965.) “[L]abels and conclusions” are not enough,
Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court “‘is
not bound to accept as true a legal conclusion couched as a
factual allegation.’” Id., 127 S.Ct. at 1965 (quoted case
In resolving the motion to dismiss, we thus “conduct a
two-part analysis.” Fowler, supra, 578 F.3d at 210. First, we
separate the factual elements from the legal elements and
disregard the legal conclusions. Id. at 210-11.
“determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “‘plausible claim for
relief.’” Id. at 211 (quoted case omitted).
“Because federal courts are courts of limited
jurisdiction, a presumption arises that they are without
jurisdiction until the contrary affirmatively appears.” Myers v.
Am. Dental Ass’n, 695 F.2d 716, 724 (3d Cir. 1982). In ruling on a
motion to dismiss under Rule 12(b)(2), the court is required, as
with Rule 12(b)(6) motions, to accept as true all allegations
contained in the complaint and view all factual disputes in
plaintiff’s favor. D’Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94,
102 (3d Cir. 2009). However, the scope of the Court’s review on a
Rule 12(b)(2) motion is not limited to the face of the complaint,
but may include affidavits and other competent evidence submitted
by the parties. Patterson v. FBI, 893 F.2d 595, 603-604 (3d Cir.
The plaintiff, ultimately, bears the burden of proving, by
a preponderance of the evidence, facts sufficient to establish
personal jurisdiction over the defendants. Metcalfe v. Renaissance
Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009).
Federal Rule of Civil Procedure 56(a) requires the court
to render summary judgment "if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law."
standard provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact."
Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
A disputed fact is "material" if proof of its existence
or nonexistence would affect the outcome of the case under
applicable substantive law.
Anderson, 477 U.S. at 248; Gray v.
York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).
issue of material fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
Anderson, 477 U.S. at 257; Brenner v. Local 514, United
Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283,
1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of
material fact, the court must view the facts and all reasonable
inferences in favor of the nonmoving party. Moore v. Tartler, 986
F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation,
963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric
Company, 862 F.2d 56, 59 (3d Cir. 1988).
In order to avoid
summary judgment, however, the nonmoving party may not rest on the
unsubstantiated allegations of his or her pleadings.
party seeking summary judgment satisfies its burden under Rule 56
of identifying evidence which demonstrates the absence of a
genuine issue of material fact, the nonmoving party is required by
Rule 56 to go beyond the pleadings with affidavits, depositions,
answers to interrogatories or the like in order to demonstrate
specific material facts which give rise to a genuine issue.
Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986).
party opposing the motion "must do more than simply show that
there is some metaphysical doubt as to the material facts."
Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574,
When Rule 56 shifts the burden of production to the
nonmoving party, that party must produce evidence to show the
existence of every element essential to its case which it bears
the burden of proving at trial, for "a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
U.S. at 323.
See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d
Statements of Material Facts
Defendants’ statements of material facts are undisputed
as well as supported by ample evidentiary materials and the court
incorporates those statements herein by reference. (Doc. Nos. 178,
In condensed form those statements reveal the following:
(1) the Bureau of Prisons has established an
administrative remedy procedure with respect to inmate
complaints which is found at 28 C.F.R. § 542.10 et seq.;
(2) the Bureau of Prisons maintains a database of all
formal administrative remedy submissions where each
administrative remedy is given an identification number
upon submission and the database, among other things,
indicates when it was received, the nature of the
complaint, and the institution at which the complaint
(3) inmates are to first present their complaints to
staff in an attempt to informally resolve the matter,
which is accomplished by obtaining and completing an
informal administrative remedy form (BP-8);
(4) informal resolution (BP-8) forms are separate and
distinct from an inmate request to staff, also know as a
10. See Declaration of Jennifer Knepper, attached to Statement
of Material Facts as to Plaintiff Michael R. Little. (Doc. No.
(5) the BP-8 forms are obtained from the inmate’s Unit
Team, generally the Correctional Counselor of the Unit;
(6) if informal resolution is unsuccessful, the inmate
then files a formal request with the Warden within
twenty (20) days of the events giving rise to the
(7) the Warden has twenty (20) days to respond to the
inmate’s formal complaint;
(8) if an inmate is dissatisfied with the Warden’s
response, he may then appeal to the Regional Director;
(9) if dissatisfied with the Regional Director’s
response, the inmate may then appeal to the Central
Office of the Bureau of Prisons which is the final
(10) if a remedy is rejected at any level, it is
returned to the inmate with a written notice explaining
the reasons for the rejection;
(11) an inmate has not exhausted his administrative
remedies until the complaint has been denied at all
levels of the process prior to filing suit;
(12) Little is serving a life sentence imposed by the
District of Columbia Superior Court on July 6, 2001, for
second degree murder, possession of a firearm during a
crime of violence, and attempted voluntary manslaughter;
(13) Little has filed 685 administrative remedies during
his incarceration with the Bureau of Prisons;
(14) since his arrival at USP-Lewisburg Little has filed
101 administrative remedies;
(15) Little filed 12 of those remedies between December
24, 2013 and May 19, 2014, the date he filed the present
(16) with respect to the 12 administrative remedies
filed at USP-Lewisburg, eleven of those remedies were
submitted only at the institutional level, and therefore
were not exhausted pursuant to regulations of the Bureau
(17) none of the administrative remedies Little filed
between December 24, 2013 and May 19, 2014, received a
response from the Central Office before he filed the
complaint on May 19, 2014;
(18) the claims against the USP-Lewisburg defendants
occurred on May 8, 2014, approximately eleven days
before Plaintiffs filed their initial complaint on May
19, 2014, and therefore, it would have been impossible
for Little to have exhausted his claims during those
eleven days given the time allowed inmates to appeal
administrative remedies and the time permitted the
Bureau of Prisons to respond to them as set forth above;
(19) Defendant Diltz is employed by the Bureau of
Prisons as a Correctional Counselor at USP-Lewisburg;
(20) administrative remedy forms are primarily
distributed by Correctional Counselors, but may be
obtained from any member of the inmate’s Unit Team;
(21) inmates can return completed administrative remedy
forms to any member of the Unit Team;
(22) when Diltz received a request for a BP-8, he writes
the inmate’s name on the form as well as the date on
which he provided the form to the inmate and when a
completed BP-8 is returned by the inmate Diltz assigns
it a number, notes in his log book the date on which the
inmate returned the form to him, and forwards it to the
(23) once the appropriate department responds to the BP8, he provides the response to the inmate and notes the
date in his log;
(24) the portion of Diltz’s log book that covers the
period of time between April 29, 2014, and May 19, 2014,
indicates that he provided Little with a BP-8 form on
May 7, 2014, which was recorded as Informal Resolution
(25) that informal resolution attempt pertained to a
nurse “screaming” Little’s name on the range on April
(26) Little’s Informal Resolution Attempt #G37-14 stated
that inmates were made aware via “kite” prior to his
arrival at USP-Lewisburg that he was a “rat/snitch” and
those inmates recognized his name constituting a danger
to his safety;
(27) a response to the Informal Resolution Attempt #G3714 was provided to Little on May 28, 2014;
(28) the Bureau of Prisons maintains a computerized
database of all administrative tort claims filed under
the FTCA, dating from October 2007 to the present;
(29) Little has filed 22 administrative tort claims
while in the custody of the Bureau of Prisons;
(30) Little filed no administrative tort claims between
July 6, 2010, and June 23, 2014;11
(31) Little has filed fifteen tort claims since June 23,
(32) Little filed no administrative tort claims
concerning the events in the instant lawsuit before he
filed the complaint;
11. The administrative tort claims are submitted initially to
the Regional Office of the Bureau of Prisons. Little submitted
no evidentiary material indicating that he submitted any
administrative tort claims under the FTCA.
12. Little submitted no evidentiary materials indicating that
the administrative tort claims filed after June 23, 2014, related
to any of the allegations in the third amended complaint.
(33) Defendants Holland, Hubbard and Middleton have no
work or business connection with the Commonwealth of
Pennsylvania and they do not reside in the Commonwealth
(34) Milhouse is serving a sentence of 894 months
imposed by the United States District for the Eastern
District of Pennsylvania on December 3, 2007, for bank
robbery and related charges and a separate sentence of
300 months imposed by the same court on February 15,
2008, for sexual assault, escape, and possession of a
dangerous weapon relating to an incident that occurred
at the Federal Detention Center in Philadelphia;
(35) Milhouse has filed 1143 administrative remedies
during his incarceration with the Bureau of Prisons;
(36) since his arrival at USP-Lewisburg on April 28,
2014, to the present, Milhouse has filed 141
(37) Milhouse filed 4 of those remedies between April
28, 2014, and May 19, 2014;
(38) Milhouse did not exhaust any of those
administrative remedies before filing the present
(39) Milhouse has filed 76 administrative tort claims
while in the custody of the Bureau of Prisons;
(40) Milhouse filed an administrative tort claim on
April 1, 2014, for a personal injury occurring at the
United States Penitentiary at Hazelton, a facility in
West Virginia; and
(41) Milhouse did not file a tort claim again until June
12, 2014, and as such Milhouse did not file, let alone
exhaust, any administrative tort claims concerning the
events in the instant lawsuit prior to filing his
A. Personal Involvement of Defendants Thomas, Butler, Heath,
Entzel and Taggart.
As noted previously, the court has an obligation under
the PLRA to dismiss claims at anytime it becomes apparent that the
claims are not viable.
A person seeking to recover damages under
Bivens must satisfy three requirements; he must: (1) assert that a
constitutionally protected right has been violated; (2) state a
cause of action sufficient to invoke the general federal question
jurisdiction of the district court; and (3) demonstrate why money
damages are the appropriate form of relief.
See Muhammad v.
Carlson, 739 F.2d 122, 123-4 (3d Cir. 1984).
Moreover, in addressing whether a viable claim has been
stated against a defendant the court must assess whether a
plaintiff has sufficiently alleged personal involvement of the
defendant in the acts which he claims violated his rights.
Liability may not be imposed under Bivens on the traditional
standards of respondeat superior. Capone v. Marinelli, 868 F.2d
102, 106 (3d Cir. 1989)(citing Hampton v. Holmesburg Prison
Officials, 546 F.2d 1017, 1082 (3d Cir. 1976)).
In Capone, the
court noted "that supervisory personnel are only liable for the §
1983 violations of their subordinates if they knew of,
participated in or acquiesced in such conduct." 868 F.2d at 106
With respect to Defendants Thomas, Butler, Heath, Entzel
and Taggart the allegations set forth in the third amended
complaint are clearly insufficient.
Their only involvement was
with respect to the handling of grievances and requests of Little
Such involvement is insufficient as a matter of law
to render those defendants liable.
“[T]he failure of a prison
official to act favorably on an inmate's grievance is not itself a
Rauso v. Vaughn, Civil No. 96-6977,
2000 WL 873285, at *16 (E.D.Pa., June 26, 2000). See also Overholt
v. Unibase Data Entry, Inc., 221 F.3d 1335 (Table), 2000 WL
799760, at *3 (6th Cir.2000) (“The defendants were not obligated
to ‘properly’ respond to Overholt's grievances because there is no
inherent constitutional right to an effective prison grievance
procedure. Hence, his allegations that the defendants did not
properly respond to his grievances simply do not rise to the level
of a constitutional violation.”) (citations omitted); Mitchell v.
Keane, 974 F.Supp. 332, 343 (S.D.N.Y.1997) (“it appears from the
submissions before the court that Mitchell filed grievances, had
them referred to a prison official, and received a letter
reporting that there was no evidence to substantiate his
complaints. Mitchell's dissatisfaction with this response does not
constitute a cause of action.”);
Caldwell v. Beard, Civil No.
2:07-CV-727, 2008 WL 2887810, at *4 (W.D.Pa. July 23, 2008) (“Such
a premise for liability [i.e., for performing a role in the
grievance process] fails as a matter of law.”), aff'd,--- F. App’x
----, 2009 WL 1111545 (3d Cir. April 27, 2009); Caldwell v. Hall,
Civil No. 97-8069, 2000 WL 343229, at *2 (E.D.Pa. March 31, 2000)
(“The failure of a prison official to act favorably on an inmate's
grievance is not itself a constitutional violation.”); Orrs v.
Comings, Civil No. 92-6442, 1993 WL 418361, at *2 (E.D.Pa. Oct.13,
1993) (“But an allegation that a defendant failed to act on a
grievance or complaint does not state a Section 1983 claim.”);
Jefferson v. Wolfe, Civil No. 04-44, 2006 WL 1947721, at *17 (W.D.
Pa. July 11, 2006) (“These allegations [of denying grievances or
grievance appeals] are insufficient to establish such Defendants'
personal involvement in the challenged conduct under Section 1983.
See Watkins v. Horn, 1997 WL 566080 at * 4 (E.D.Pa..[sic] 1997)
(concurrence in an administrative appeal process is not sufficient
to establish personal involvement)”). Consequently, the claims
against those Defendants will be dismissed for failure to state a
claim upon which relief can be granted without leave to file a
fourth amended complaint.13
The court will now address the issue of whether this
court has personal jurisdiction over Defendants Holland, Hubbard,
The Defendants’ statement of material facts
reveals that Defendants Holland, Hubbard and Middleton at the time
of the incidents alleged in the third amended complaint, did not
reside, work or have business dealings in Pennsylvania.
presently do not reside, work or have business dealings in
The assertions relating to having insufficient
contact with Pennsylvania are supported by unsworn declarations
under penalty of perjury from each of these defendants.
Little did not file any evidence which contradicts the evidence
and statements submitted by these Defendants.
When a defendant properly raises a jurisdictional
defense, a plaintiff is required to "demonstrate sufficient
contacts with the forum state to establish in personam
North Penn Gas v. Corning Natural Gas, 897 F.2d
687, 689 (3d Cir. 1990).
13. It would be inequitable and futile to grant Plaintiffs
another opportunity to amend. See Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007);
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
Furthermore, it is clear as will be elaborated herein that
Plaintiffs have failed to exhaust administrative remedies with
respect to both the claims under Bivens and the FTCA.
A court’s personal jurisdiction over a defendant may be
general or specific.
Specific jurisdiction is found when a “non-
resident defendant has ‘purposefully directed’ his activities at a
resident of the forum and the injury arises from or is related to
General Electric Co. v. Deutz AG, 270 F.3d
144, 150 (3d Cir. 2001).
General jurisdiction is present when a
defendant has “continuous and systematic contacts with the forum
Id. at 150.
Specific jurisdiction is inapplicable in this case
because the allegations at issue directed at Holland, Hubbard and
Middleton all relate to their alleged conduct outside of the state
of Pennsylvania and that conduct was not directed at Plaintiff
Little as a resident of Pennsylvania.
The allegations raised
against Defendants Holland, Hubbard and Middleton all relate to
when Plaintiff Little was housed at USP-McCreary.
question is whether the court can exercise general jurisdiction
over these defendants.
Rule 4(e) of the Federal Rules of Civil Procedure
authorizes personal jurisdiction over non-residents to the extent
permissible under the laws of the state where the district court
Penzoil Products Co. v. Coletti & Associates, Inc., 149
F.3d 197, 200 (3d Cir. 1998).
The Pennsylvania long-arm statute
states in relevant part:
[T]he jurisdiction of the tribunal of this Commonwealth
shall extend . . . to the fullest extent allowed under
the Constitution of the United States and may be based
on the most minimum contact with this Commonwealth
allowed under the Constitution of the United States.
42 Pa.C.S.A. § 5322(b).
Consequently, the exercise of personal
jurisdiction over a non-resident is proper so long as there is no
violation of the due process clause of Fourteenth Amendment to the
United States Constitution.
Penzoil Products Co., supra.
The due process requirements are satisfied when a nonresident has "minimum contacts" with the jurisdiction.
International Shoe Co. v. Washington, 326 U.S. 310 (1945); Burger
King Corp. v. Rudzewicz, 471 U.S. 462 (1985). The focus of the
court’s inquiry must be on the activities of the defendant in the
Burger King Corp., 471 U.S. at 474-76.
defendant must have purposefully availed itself of the privilege
of conducting business in the forum. Id. The Supreme Court in
Burger King held that
this “purposeful availment” requirement ensures
that a defendant will not be haled into a jurisdiction
solely as a result of “random,” “fortuitous,” or
“attenuated” contacts, or of the “unilateral activity of
another party or a third person.” Jurisdiction is
proper, however, where the contacts proximately result
from actions by the defendant himself that create a
“substantial connection” with the forum State.
where the defendant "deliberately" has engaged in
significant activities within a State, or has created
"continuing obligations" between himself and residents
of the forum, he manifestly has availed himself of the
privilege of conducting business there, and because his
activities are shielded by "the benefit and protections"
of the forum's laws it is presumptively not unreasonable
to require him to submit to the burdens of litigation in
that forum as well.
Id. at 475-76 (internal citations omitted). The important issue is
whether the defendant’s conduct with and connection to the
particular jurisdiction is such that the defendant would
reasonably anticipate being haled into court in the jurisdiction.
In the present case as stated above, Defendants Holland,
Hubbard and Middleton have filed declarations indicating that they
have insignificant or no contact with the Commonwealth of
Pennsylvania. In responding to the brief and statement of material
facts, Little did not (1) claim that any of those defendants
worked or resided in Pennsylvania or (2) submit any contrary
Even assuming that these Defendants had
input into any decision to transfer Little to USP-Lewisburg that
input is insufficient to establish the minimum contacts required
under the due process clause. Burger King Corp., 471 U.S. at 474
(“Although it has been argued that foresee ability of causing
injury in another State should be sufficient to establish such
contacts there when policy consideration so require, the Court has
consistently held that this kind of foresee ability is not a
‘sufficient benchmark’ for exercising personal jurisdiction.”);
Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1534
(10th Cir. 1996)(same); McMillan v. Wiley, 813 F.Supp.2d 1238, 1246
(D.Colo 2011)(the fact that Defendants had input into Plaintiff’s
transfer to the control unit in Colorado insufficient contact to
exercise personal jurisdiction over them);14 Williams v. Ponder,
14. The Colorado long-arm statute is similar to that of
Pennsylvania because it confers the maximum jurisdiction
permitted by the due process clause.
2009 WL 3152129, at *3 (E.D.Pa. Sept. 30, 2009)(“The mere issuance
of an arrest warrant that foreseeably caused [Plaintiff] to be
arrested in Pennsylvania . . . does not provide sufficient
contacts with Pennsylvania for this court to exercise
Consequently, Plaintiff Little’s claims against
Defendants Holland, Hubbard and Middleton will be dismissed for
lack of personal jurisdiction.
The United States relying on McNeil v. United States,
508 U.S. 106, 111-112 (1993) argues that FTCA claims of Little and
Milhouse should be dismissed because they failed to exhaust their
administrative remedies prior to filing the present action.
McNeil the Supreme Court held that a district court does not have
jurisdiction over an FTCA claim which was prematurely filed and
such claims must be dismissed.
The FTCA provides that “[a]n
action shall not be instituted . . . unless the claimant shall
have first presented the claim to the appropriate Federal agency
and his claim shall have been finally denied by the agency in
writing.” 28 U.S.C. § 2675(a).
There is a presumptive denial if
the agency fails to make a final disposition within six months
after the administrative tort claim is filed. Id.
conclusively established that Little and Milhouse either did not
file FTCA claims relating to the allegations set forth in the
third amended complaint or assuming they did the third amended
complaint was prematurely filed.15
Consequently, Plaintiffs’ FTCA
claim cannot be maintained and will be dismissed as premature.
In light of the above the only remaining claims are the
Bivens claims asserted against Defendants Mottern, Boussag, Loyek,
Eck, Dowkus, and Diltz.
These Defendants argue that Little and
Milhouse have failed to exhaust their administrative remedies with
respect to the claim set forth in the third amended complaint.
Under the PLRA exhaustion of administrative remedies is
required for all actions concerning prison conditions brought
under federal law.
See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 126
S.Ct. 2378 (2006).
The “exhaustion requirement applies to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.”
Porter v. Nussle, 534 U.S.
516, 532 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001)
(“[A]n inmate must exhaust irrespective of the forms of relief
sought and offered through administrative avenues.”). “[I]t is
beyond the power of [any] court ... to excuse compliance with the
exhaustion requirement.” Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.
The PLRA also mandates that inmates “properly” exhaust
15. The earliest alleged wrongful incident in the third amended
complaint filed of record on September 2, 2014, is May 8, 2014.
Assuming that Little filed an administrative tort claim with the
Regional Office on May 9, 2014, the agency had until October 9,
2014, to issue a final decision on that claim. The third amended
complaint was filed on September 2, 2014, prior to that date.
administrative remedies before filing suit in federal court.
Woodford, 126 S.Ct. at 2387.
“Proper exhaustion demands
compliance with an agency’s deadlines and other critical
procedural rules because no adjudicative system can function
effectively without imposing some orderly structure on the course
of its proceedings.”
Id. at 2386.
Failure to substantially
comply with procedural requirements of the applicable prison’s
grievance system will result in a procedural default of the claim.
Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004).
Bureau of Prisons’ procedural requirements for the exhaustion of
administrative remedies have been outlined above in section IV,
Statements of Material Facts.
Moreover, a prisoner must exhaust administrative
remedies even where the relief sought, such as monetary damages,
cannot be granted by the administrative process. See Booth, 532
U.S. at 734; Nyhuis, 204 F.3d at 73.
The PLRA requires exhaustion
of all claims before a complaint is filed. 42 U.S.C. § 1997e(a).
Subsequent exhaustion of administrative remedies or the filing of
an amended complaint does not cure an exhaustion infirmity. See
Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002).
Based on Defendants’ statements of material facts and
the evidentiary materials and the lack of opposing evidentiary
materials, the court concludes that there are no triable issues of
material fact regarding the issue of exhaustion of administrative
remedies and that Defendants Mottern, Boussag, Loyek, Eck, Dowkus,
and Diltz are entitled to judgment as a matter of law.
An appropriate order will be entered.
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