Livingston v. Sherman et al
MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY L. LIVINGSTON,
LIEUTENANT SHERMAN, et al., :
Hon. John E. Jones III
March 1, 2017
Plaintiff Anthony L. Livingston (“Livingston” or “Plaintiff”), a federal
inmate formerly confined in the Special Management Unit (“SMU”) at the United
States Penitentiary at Lewisburg (“USP-Lewisburg”), Pennsylvania, commenced
this this Bivens1 action on January 11, 2016. (Doc. 1). Livingston names
Lieutenants Sherman, Miller, and Agones as Defendants.
Presently pending is Defendants’ motion (Doc. 16) to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth
below, the motion for summary judgment will be granted.
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
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 courts to obtain an award of monetary damages against the responsible federal official.”
Butz v. Economou, 438 U.S. 478, 504 (1978).
SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment “should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340
(3d Cir. 1990). “[T]his 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); Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990).
A disputed fact is “material” if proof of its existence or nonexistence would affect
the outcome of the case under applicable substantive law. Id.; Gray v. York
Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An 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
The party moving for summary judgment bears the burden of showing the
absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d
Cir. 1996). Once such a showing has been made, the non-moving party must 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. FED. R. CIV. P. 56; Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 586 (1986) (stating that the non-moving party “must
do more than simply show that there is some metaphysical doubt as to the material
facts”); Wooler v. Citizens Bank, 274 F. App’x 177, 179 (3d Cir. 2008). The party
opposing the motion must produce evidence to show the existence of every
element essential to its case, which it bears the burden of proving at trial, because
“a complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Celotex. at 323; see
also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). “[T]he non-moving
party ‘may not rely merely on allegations or denials in its own pleadings; rather, its
response must . . . set out specific facts showing a genuine issue for trial.’” Picozzi
v. Haulderman, 2011 WL 830331, *2 (M.D. Pa. 2011) (quoting FED. R. CIV. P.
56(e)(2)). “Inferences should be drawn in the light most favorable to the nonmoving party, and where the non-moving party’s evidence contradicts the
movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v.
BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
STATEMENT OF MATERIAL FACTS
“A motion for summary judgment filed pursuant to Federal Rule of Civil
Procedure FED. R. CIV. P. 56 shall be accompanied by a separate, short and concise
statement of the material facts . . . as to which the moving party contends there is
no genuine issue to be tried.” See L.R. 56.1. The opposing party shall file a
separate statement of the material facts as to which it is contended that there exists
a genuine issue to be tried. Id. “All material facts set forth in the statement
required to be served by the moving party will be deemed to be admitted unless
controverted by the statement required to be served by the opposing party.” Id.
On October 3, 2016, an Order (Doc. 24) entered directing Livingston to file
a brief in opposition to Defendants’ motion and a statement of material facts
specifically responding to the numbered paragraphs in Defendants’ statement of
material facts (Doc. 18). The order cautioned him that, in accordance with the
Local Rules of Court, his failure to respond to the statement of material facts
would result in the facts being deemed admitted, and his failure to file an
opposition brief would result in the motion being deemed unopposed. On October
17, 2016, he filed an opposition brief (Doc. 26), and a document (Doc. 27) entitled
“Plaintiff Statement of Material Facts.” The statement of material facts does not
comport with the Local Rules of Court in that it is simply one paragraph and does
not specifically respond to the numbered paragraphs in Defendants’ statement.
Consequently, Defendants’ statement of material facts will be deemed admitted.
The BOP Administrative Remedy Program is a multi-tier process that is
available to inmates confined in institutions operated by the BOP for review of an
issue which relates to any aspect of their confinement. (Doc. 18,¶ 3, citing 28
C.F.R. §542 et seq.). An inmate must initially attempt to informally resolve the
issue with institutional staff by completing a BP-8 form. (Id. at 4, citing 28 C.F.R.
§ 542.13(a)). If informal resolution fails an inmate may submit a request via a BP9 form to the Warden within 20 days of the date on which the basis for the request
occurred. (Id. at 5, citing 28 C.F.R. § 542.14(a)). An inmate who is dissatisfied
with the Warden’s response may submit an appeal using a BP-10 form to the
Regional Director of the BOP within 20 days of the date the Warden signed the
response. (Id. at 6, citing 28 C.F.R. § 542.15(a)). The Regional Director has 30
calendar days to respond to the appeal. (Id. at 8, citing 28 C.F.R. § 542.18). If the
Regional Director denies the appeal, the inmate may then appeal to the BOP’s
Central Office within 30 days of the denial. (Id.at 7). The Central Office has 40
calendar days to respond to an appeal. (Id. at 11). Appeal to the Central Office is
the final administrative appeal. (Id. at 12). Upon conclusion of the appeal, the
inmate may file a civil action. (Id. at 10).
Plaintiff is a federal inmate in the custody of the Federal Bureau of Prisons
(“BOP”) formerly designated to the Special Management Unit (“SMU”) at USPLewisburg, alleging that he suffered scars and dark spots on his body after being
placed in restraints by the Defendants. (Id. at 2, 19). A July 18, 2016 search of
BOP records revealed that Livingston utilized the administrative remedy process
on two occasions, Remedy Nos. 717824-R1 and 729172-R1. (Id. at 19, 22, 30).
Each involved appeal of a Disciplinary Hearing Officer’s adjudication of two
separate Incident Reports received by Livingston. (Id. at 20). The BOP records
search further revealed that Livingston failed to seek administrative review of the
claims alleged in the complaint. (Id. at 21).
Under the Prison Litigation Reform Act of 1996 (the “PLRA”), a prisoner is
required to pursue all avenues of relief available within the prison’s grievance
system before bringing a federal civil rights action concerning prison conditions.
See 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000).
Specifically, “[n]o action shall be brought with respect to prison conditions . . .
until such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). As the statute’s language makes clear, the exhaustion of available
administrative remedies prior to filing suit is mandatory. See Nyhuis v. Reno, 204
F.3d 65, 73 (3d Cir.2000) (“[I]t is beyond the power of this court—or any other—
to excuse compliance with the exhaustion requirement, whether on the ground of
futility, inadequacy or any other basis.”) (quoting Beeson v. Fishkill Corr. Facility,
28 F. Supp.2d 884, 894–95 (S.D.N.Y. 1998)). Whether an inmate has exhausted
administrative remedies is a question of law that is to be determined by the court,
even if that determination requires the resolution of disputed facts. See Small v.
Camden County, 728 F.3d. 265, 268 (3d Cir. 2013); see also Drippe v. Tobelinski,
604 F.3d 778, 781 (3d Cir. 2010).
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.” Woodford v. Ngo, 548 U.S. 81,
90–92 (2006). It requires compliance with the prison’s “deadlines and other
critical procedural rules.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “The level
of detail necessary in a grievance to comply with the grievance procedures will
vary from system to system and claim to claim, but it is the prison’s requirements,
and not the PLRA, that define the boundaries of proper exhaustion.” Jones v.
Bock, 549 U.S. 199, 211–212 (2007). “[F]ailure to satisfy the procedural rules of
the [BOP’s] administrative process constitutes a procedural default.” Moscato, 98
F.3d at 760–761 (citing Francis v. Rison, 894 F.2d 353,355 & n. 2 (9th Cir. 1990);
Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir.1986)).
The PLRA requires Livingston to pursue administrative relief with regard to
his Bivens claims prior to filing suit in federal court. He contends that he “initiated
the administrative remedy process. Regional Administrative Remedy Appeal case
number – 729172.” (Doc. 27, p. 1). However, review of BOP records indicates
that this is an appeal of a DHO hearing decision wherein Livingston was found to
have committed the prohibited act of Assaulting without Serious Injury; there is no
mention of the issues raised in his complaint. (Doc. 18-1, pp. 32-40). The party
adverse to summary judgment must raise “more than a mere scintilla of evidence in
its favor” in order to overcome a summary judgment motion and cannot survive by
relying on unsupported assertions, conclusory allegations, or mere suspicions.
Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). It is
undisputed that Livingston failed to exhaust his available administrative remedies
with regard to the issues raised in his Complaint. Consequently, Defendants are
entitled to an entry of summary judgment.2
Plaintiff fares no better if his claims are construed as having been brought pursuant to the
Federal Tort Claims Act. Error! Main Document Only. 28 U.S.C. § 2679(b)(1). The FTCA
provides that a suit against the United States is the exclusive remedy for persons seeking
recovery for common law torts committed by federal employees within the scope of their federal
employment. See also 28 U.S.C. §1346(b) (governing jurisdiction). Because the FTCA is a
limited waiver of sovereign immunity which extends to the United States, but not to its agencies
and employees, the United States is the only appropriate defendant. The BOP also has an
administrative tort claim process through which an inmate can seek compensation from the
United States for personal injury, wrongful death, or loss of property. (Doc. 18, ¶ 65, citing 28
C.F.R. §§ 543.30-543.32). The administrative tort claim process is also outlined in the BOP
Program Statement 1320.06, Federal Tort Claims Act. (Id. at 66). A search of this database
revealed no record of an administrative tort claim filed by Livingston. (Id. at 70-71).
For the foregoing reasons, Defendants’ motion (Doc. 16) for summary
judgment pursuant to Federal Rule of Civil Procedure 56 will be granted.
A separate order will enter.
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