Brooks v. Bledsoe et al
Filing
136
ORDER (memorandum previouls filed as separate docket entry) OVERRULING the objections to R&R; Sustaining dfts' objections; ADOPTING in part/DENYING in part the Report and Recommendation of Magistrate Judge Schwab; Pltf's motion for summary judgment is DENIED in its entirety; and Dfts' 69 MOTION to Dismiss / Summary Judgment is GRANTED re dfs Bledsoe, Kepner, Smith Mink Crawley, Jordan, Young, Cotterall, Smith and George and these parties are dismissed; The only remaining claim to proceed to trial is pltf's Bivens claim against dft Prutzman SEE ORDER FOR SPECIFICS. Signed by Honorable James M. Munley on 08/24/15. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LOVE ALTONIO BROOKS,
Plaintiff
: No. 3:12cv67
:
: (Judge Munley)
v.
:
: (Magistrate Judge Schwab)
B.A. BLEDSOE, OFFICER KEPNER, :
OFFICER SMITH, PSYCHOLOGIST
:
MINK, CO T. CRAWLEY, UNKNOWN :
OFFICERS, OFFICER PRUTZMAN,
:
A. JORDAN, D. YOUNG,
:
A. COTTERALL, OFFICER SMITH,
:
and GREGORY GEORGE
:
Defendants
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 24th day of August 2015, it is HEREBY
ORDERED as follows:
1.
Plaintiff’s objections to the Report and Recommendation (Doc. 123)
are OVERRULED;
2.
Defendants’ objections to the Report and Recommendation (Doc.
129) are SUSTAINED;
3.
The Report and Recommendation of Magistrate Judge Schwab
(Doc. 120) is ADOPTED in part and NOT ADOPTED in part as
follows:
a.
The Report and Recommendation is adopted without objection
regarding defendants’ motion to dismiss/motion for summary
judgment (Doc. 69) as follows:
i.
Plaintiff’s FTCA claim against the United States
pertaining to the alleged unlawful taking of plaintiff’s
personal property is DISMISSED;
ii.
Plaintiff’s Bivens claims seeking money damages against
the United States and the individual defendants in their
official capacities are DISMISSED;
iii.
Plaintiff’s Bivens claim asserting Dr. Mink verbally
abused plaintiff in contravention of the Eighth
Amendment is DISMISSED;
iv.
Plaintiff’s retaliation claim against Defendant Young
regarding Young’s rejection of books mailed to plaintiff is
DISMISSED; and
v.
Plaintiff’s Bivens claim against Defendant Prutzman
averring Prutzman stole and damaged plaintiff’s personal
property in violation of the Due Process Clause of the
Fifth Amendment SHALL PROCEED.
b.
After a de novo review of those portions of the Report and
Recommendation against which objections were made,
defendants’ motion to dismiss/motion for summary judgment
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(Doc. 69) is GRANTED as follows:
i.
“Officer Smith” and the “Unknown Defendants” are
DISMISSED under Rule 4(m) of the Federal Rules of
Civil Procedure;
ii.
Plaintiff’s claims for injunctive relief are DISMISSED as
MOOT;
iii.
Plaintiff’s Bivens supervisory liability claims against
Defendants Bledsoe, Crawley, Kepner, Mink, Prutzman,
Jordan, Coterall and Young are DISMISSED;
iv.
Plaintiff’s Bivens claims against Defendant Kepner
alleging First Amendment retaliation pertaining to
plaintiff’s denial of recreation on April 14, 2011 are
DISMISSED;
v.
Summary Judgment is GRANTED in favor of Defendants
Kepner and Crawley on plaintiff’s First Amendment
retaliation claim pertaining to the recreation cage assault
on May 13, 2011;
vi.
Summary Judgment is GRANTED in favor of Defendant
George on plaintiff’s Eighth Amendment denial of
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medical claim stemming from the May 13, 2011 assault;
vii.
Summary Judgment is GRANTED in favor of Defendants
Crawley, Jordan and Cotterall on plaintiff’s Fifth
Amendment due process claims stemming from his
disciplinary hearing on July 28, 2011;
viii.
Summary Judgment is GRANTED in favor of Warden
Bledsoe regarding the Bureau of Prisons’ policy
prohibiting inmates from possessing Uniform
Commercial Code materials;
ix.
Summary Judgment is GRANTED in favor of Warden
Bledsoe pertaining to the Bureau of Prison’s policy
banning plaintiff from possessing Pronoland, Velvet
Nightmares, Succulent, Smut, Sex, the Ultimate Lover’s
Guide, Heidi’s Bedtime Stories and forty-two sexually
explicit photographs;
x.
Plaintiff’s FTCA claims arising from the May 13, 2011
altercation are DISMISSED as unexhausted. These
claims include: (1) whether USP-Lewisburg staff
negligently included an unstable inmate in plaintiff’s
4
recreation group; (2) whether USP-Lewisburg staff had a
duty to protect inmates who are not allowed to defend
themselves; (3) whether staff’s refusal to offer plaintiff a
means of retreat during the altercation established
negligence; (4) whether staff’s refusal to interfere during
the altercation established negligence; and (5) whether
plaintiff’s denial of access to medical treatment
constituted an act of ordinary negligence.
xi.
Summary Judgment is GRANTED in favor of the
individual correctional officer defendants on plaintiff’s
Bivens inadequate ventilation claim under the Eighth
Amendment; and
xii.
Summary Judgment is GRANTED in favor of the United
States on plaintiff’s FTCA personal injury claim arising
from the “planned attack” on May 13, 2011.
4.
Plaintiff’s motion for summary judgment (Doc. 73) is DENIED in its
entirety;
5.
The sole claim that will proceed to trial is plaintiff’s Bivens claim
against Defendant Prutzman averring Prutzman stole and damaged
5
plaintiff’s personal property in violation of the Due Process Clause of
the Fifth Amendment. The only remaining defendant in this action,
therefore, is Defendant Prutzman.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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