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)

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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 2 (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 3 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 6

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