Miller v. United States

Filing 30

MEMORANDUM (Order to follow as separate docket entry) re 14 MOTION for Summary Judgment filed by United States.Signed by Honorable Malachy E Mannion on 11/6/14. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s))(bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DERRICK EARL MILLER,

:

Plaintiff

:

v.

:

CIVIL ACTION NO. 3:14-0370
(JUDGE MANNION)
UNITED STATES,
Defendant

:
:
MEMORANDUM

I.

Background
Plaintiff, Derrick Earl Miller, an inmate confined in the United States

Penitentiary, Lewisburg, Pennsylvania, filed the above captioned Federal Tort
Claims Act (FTCA) action pursuant to §28 U.S.C. 2671, et seq., alleging two
instances of staff assault, battery, and negligence on July 15 and August 11,
2013. (See Doc. 1).
Specifically, Plaintiff states that “on July 15, 2013, between the hours
of 9:00 am and 10:29 am, Officer S. Buedendorf came to the Plaintiff’s cell,
opened up the cell door window cover, pointed at the Plaintiff and stated, ‘I
got something for your ass’.” (Doc. 1 at 2). Following this statement, Officer
Buedendorf allegedly “came to the Plaintiff’s cell along with Officer C.
Brininger and handcuffed the Plaintiff and his cellmate.” Id. Plaintiff states that
“after [he] was subdued in handcuffs behind his back, Officer S. Buedendorf
and Officer Brininger extracted the Plaintiff from his cell for no justifiable

reason but to assault the Plaintiff and after being extracted from his cell, the
Plaintiff was escorted to the third floor shower, which is a blind spot with no
cameras, and both officers proceeded to slam the Plaintiff face first into the
ground, meanwhile the Plaintiff’s hands were restrained behind his back, and
the Plaintiff was not resisting in any shape, form or fashion.” (Doc. 1 at 3).
After being slammed on the face, Plaintiff claims that his “right eye began to
swell immediately, and both officers starting kicking and punching the Plaintiff,
while the Plaintiff was facedown on the ground subdued in handcuffs behind
his back.” Id.
Immediately following the incident, Plaintiff states that he was “placed
in hard metal restraints (i.e. hard handcuffs attached to a belly chain and hard
metal shackles) which were applied extremely tight in a manner that caused
permanent scaring on the Plaintiff’s wrist, abdomen, back and ankles”, and
which “can still be visibly seen going around the Plaintiff’s abdomen and
back.” Id. Plaintiff claims that he was “left in hard metal ambulatory restraints
for 24 hours in violation of 28 C.F.R. §552.22 (c)(f), which states that
restraints may only remain on an inmate until self-control is regained.” (Doc.
1 at 4). Plaintiff believes that because “the lieutenants were able to do
restraint checks” and “medical was able to conduct restraint checks without
any resistance, therefore self-control had been regained, but medical
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personnel was negligent when they performed their restraint checks and they
concurred to leave [Plaintiff] in restraints, even though they were aware that
the hard restraints were causing the Plaintiff injury.” Id.
On August 11, 2013, Plaintiff states that while being extracted from his
cell during a cell rotation, officers “slammed the Plaintiff on the floor and lied
like the Plaintiff assaulted an officer, but the Plaintiff was subdued in
handcuffs behind his back in total compliance.” Id. He claims that Officer C.
Brininger told him that “since you keep trying to mail letters out and get BP8's
regarding what happened, we got a new method for you.” Id. Plaintiff was then
“placed back into hard metal ambulatory restraints.” Id.
Plaintiff claims that while in restraints, he “did not receive proper
medical care for his wounds, instead the lieutenants and nurses falsified
government documents when they conducted ambulatory restraint checks,
so/that they could justify torturing the Plaintiff.” (Doc. 1 at 5). While in
restraints, Plaintiff states that he suffered “lacerations, cuts, nerve damage,
and severe swelling and discoloration in the Plaintiff’s wrist, ankles, abdomen,
and back.” Id.
On February 28, 2014, Plaintiff filed the instant action in which he claims
that “the aforementioned federal prison officials exhibited negligence and
assault and battery, which caused actual injury to the Plaintiff.” Id. As such,
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he ‘is filing his complaint under the Federal Tort Claim Act, pursuant to 28
U.S.C. §1346(6)” which “permits suit in federal court for damages for injury
such as the personal injury caused by the negligent and wrongful acts of the
aforementioned federal prison officials who acted within the scope of their
employment. Id. For relief, Plaintiff seeks compensatory damages, as well as
“to be examined by an outside physician.” Id.
Presently before the Court is Defendant’s motion for summary
judgment. (Doc. 14). The motion has been fully briefed and is ripe for
disposition. For the reasons that follow, Defendant’s motion for summary
judgment will be granted.

II.

Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a) “[t]he court shall grant

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.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “[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,
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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). 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 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, parties may not rely on unsubstantiated
allegations. Parties seeking to establish that a fact is or is not genuinely
disputed must support such an assertion by “citing to particular parts of
materials in the record,” by showing that an adverse party’s factual assertion
lacks support from cited materials, or demonstrating that a factual assertion
is unsupportable by admissible evidence. Fed.R.Civ.P. 56(c)(1); see Celotex,
477 U.S. at 324 (requiring evidentiary support for factual assertions made in
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response to summary judgment). The party opposing the motion “must do
more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,
586 (1986). Parties must produce evidence to show the existence of every
element essential to its case that they bear 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.” Celotex, 477 U .S.
at 323; see Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir.1992). Failure
to properly support or contest an assertion of fact may result in the fact being
considered undisputed for the purpose of the motion, although a court may
also give parties an opportunity to properly provide support or opposition.
Fed.R.Civ.P. 56(e).

III.

Statement of Facts
On July 15, 2013, Incident Report No. 2468088 was issued to Plaintiff

for Assault on Staff, Code violation 224, and Refusal to Obey an Order, Code
violation 307. (Doc. 18-1 at 26, Incident Report). The incident report, which
was written by Senior Officer S. Buedendorf, reads as follows:
On the above date and approximate time, I was escorting inmate
MILLER, D (#10906-171) back from the third floor shower to Cell
326, after a routine cell search. Upon stepping from the shower
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room, I/M Miller kicked up with the heel of his left foot, attempting
to strike my groin, but struck my upper left inner thigh. I then
placed I/M Miller onto the landing floor outside of the showers to
attempt to regain control. Once on the floor, I/M Miller was
constantly aggressive, continuing in his attempts to kick me
repeatedly. I gave several direct orders to cease his actions, but
I/M Miller continued his aggressive actions until responding staff
arrived on scene. I have been medically assessed fit to return to
duty and lost no equipment.
Id.
On September 4, 2013, Plaintiff appeared for a hearing before
Discipline Hearing Officer (“DHO”), A. Jordan. (Id. at 28-30, DHO Report).
Petitioner was found guilty of the prohibited act of Conduct which Disrupts,
most like Assaulting any Person, a Code 299/224 violation. Id. Specifically,
the DHO found that as staff tried to escort Miller back to his cell, he became
disruptive, kicked up at a staff member trying to hit the officer in the groin, but
struck his upper thigh. Id. Staff tried to gain control of Miller but he continued
to be aggressive. Id. The DHO sanctioned Miller to the disallowance of
twenty-seven (27) days of good conduct time, thirty (30) days disciplinary
segregation, and five (5) months loss of visiting, telephone and commissary
privileges. Id.
Incident Report 2468088 remains on Miller’s disciplinary record and has
never been expunged. (See Doc. 18-1 at 7, Chronological Disciplinary

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Record).
On August 11, 2013, Incident Report No. 2478910 was issued to
Plaintiff for Assaulting Any Person, Code violation 224A. (Doc. 18-1 at 53,
Incident Report). The incident report, which was written by Senior Officer S.
Buedendorf, reads as follows:
On the above date at approximately 8:36 AM while conducting 21
day cell rotations I removed I/M Miller #10906-171 from cell 112.
While attempting to pat search him he became aggressive,
specifically he attempted to break free of my control and dove
towards Officer Miller’s lower body. I immediately placed him on
the ground to regain control. While on the ground I/M Miller
continued to actively resist by kicking his legs towards myself and
responding staff.
Id.
On August 21, 2013, Plaintiff appeared for a hearing before Discipline
Hearing Officer (“DHO”), A. Jordan. (Id. at 55-58, DHO Report). Petitioner
was found guilty of the prohibited act of Conduct which Disrupts, most like
Attempted Assault on any Person, a Code 299/224A violation. Id. Specifically,
the DHO found that after trying to pat search Miller, he became aggressive,
tried to break free of staff’s control, kicked at officers, and dove towards
officers in an aggressive manner. See id. The DHO found against Miller’s
version that he felt dizzy and fell to the feet of staff. Id. The DHO sanctioned
Miller to the disallowance of twenty-seven (27) days of good conduct time,

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thirty (30) days disciplinary segregation, and four (4) months loss of visiting,
telephone and commissary privileges. Id.
Incident Report 2478910 remains on Miller’s disciplinary record and has
never been expunged. (See Doc. 18-1 at 7, Chronological Disciplinary
Record).
On October 10, 2013, the Bureau of Prisons’ Northeast Regional Office
received administrative tort claim TRT-NER-2014-00518 from Miller. (Doc. 181 at 67-69, Claim for Damage, Injury or Death). The administrative tort claim
alleged that, on August 11, 2013, Miller was physically assaulted by officers
during a cell rotation and placed in ambulatory restraints that were too tight.
Id. Miller sought to be compensated in the amount of $1,000,000. Id.
On October 15, 2013, the Bureau of Prisons’ Regional Office received
administrative tort claim TRT-NER-2014-00509 from Miller. (Doc. 18-1 at 6365). The administrative tort claim alleged that, on July 15, 2013, Miller was
physically assaulted by officers after being pulled out of his cell and escorted
to the shower area. Id. Miller sought to be compensated in the amount of
$1,000,000. Id.
On February 28, 2014, Miller filed the above captioned action in this
Court. (Doc. 1).

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On April 9, 2014, the Northeast Regional Counsel’s Office denied
administrative tort claim TRT-NER-2014-00518. (Doc. 18-1 at 69, Letter
Decision). The Region notified Miller he could “bring an action against the
United States in an appropriate United States District Court within six (6)
months of the date of this memorandum.” See id.
On April 14, 2014, the Region denied administrative tort claim
TRT-NER-2014-00509. (Doc. 18-1 at 65, Letter Decision). The Region notified
Miller that he could “bring an action against the United States in an
appropriate United States District Court within six (6) months of the date of
this memorandum.” See id.

IV.

Discussion
A. FTCA Claim
As a prerequisite to suit under the FTCA, a claim must first be

presented to the federal agency and be denied by the agency, or be deemed
to be denied. Section 2675(a) of Title 28, United States Code, provides in
pertinent part:
An action shall not be instituted against the United States for
money damages for injury or loss of property or personal injury ...
unless the claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been finally
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denied by the agency in writing and sent by certified or registered
mail. The failure of the agency to make final disposition of a claim
within six months after it is filed shall, at the option of the claimant
any time thereafter, be deemed a final denial of the claim for
purposes of this section....
The plaintiff has the burden of demonstrating that the agency actually
received the administrative claim. Lightfoot v. United States, 564 F.3d 625 (3d
Cir.2009). This burden rests with the plaintiff because, in general, the United
States enjoys sovereign immunity from suit unless it otherwise consents to be
sued. White–Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir.2010).
The United States’ “consent to be sued must be ‘unequivocally expressed,’
and the terms of such consent define the court’s subject matter jurisdiction.”
Id. The Federal Tort Claims Act constitutes “a limited waiver of the United
States’s sovereign immunity.” Id. The FTCA provides that the United States
shall be liable, to the same extent as a private individual, “for injury or loss of
property, or personal injury or death caused by the negligent or wrongful act
or omission of any employee of the Government while acting within the scope
of his office or employment[.]” 28 U.S.C. §1346(b)(1); see also 28 U.S.C.
§2674.
Prior to commencing an FTCA action against the United States in
federal court, however, a plaintiff must “first present[ ] the claim to the

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appropriate Federal agency” and receive a final denial “by the agency in
writing and sent by certified or registered mail.” 28 U.S.C. §2675(a). A claim
is considered to be presented when the federal agency receives written
notification of the alleged tortious incident and the alleged injuries, together
with a claim for money damages in a sum certain. 28 C.F.R. §14.2(a). If the
receiving federal agency fails to make a final disposition of the claim within six
months from the time it is filed, that failure is “deemed a final denial of the
claim” for purposes of commencing suit under the FTCA. 28 U.S.C. §2675(a).
The Third Circuit has instructed that “[i]n light of the clear, mandatory
language of the statute, and [the] strict construction of the limited waiver of
sovereign immunity by the United States, ... the requirement that the
appropriate federal agency act on a claim before suit can be brought is
jurisdictional and cannot be waived.” Roma v. United States, 344 F.3d 352,
362 (3d Cir.2003) (citing Livera v. First Nat’l Bank of New Jersey, 879 F.2d
1186, 1194 (3d Cir.1989)). The Supreme Court has likewise succinctly
explained that “[t]he FTCA bars claimants from bringing suit in federal court
until they have exhausted their administrative remedies.” McNeil v. United
States, 508 U.S. 106, 113 (1993). As a result, a district court may dismiss a
claim brought under the FTCA for lack of subject matter jurisdiction pursuant

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to Rule 12(b)(1) where the plaintiff has not exhausted his administrative
remedies prior to filing suit. See, e.g., Abulkhair v. Bush, 413 F. App’x 502,
506 (3d Cir.2011); Accolla v. United States Gov’t, 369 F. App’x 408, 409–10
(3d Cir.2010) (finding the district court properly dismissed FTCA claim where
the plaintiff filed federal suit prior to exhausting administrative remedies).
As is apparent from the undisputed facts, Miller filed two administrative
tort claims in October, 2013. The Bureau of Prisons then had six months to
make a final decision on his claims. If no final disposition was received within
the six months, Miller had the option to treat this silence as a final denial of
the claims, and file suit against the United States in federal court. Miller,
however, did not wait to receive a final decision, or for the six months to pass.
Instead, he filed the above captioned action on February 28, 2014, after
waiting only four months.
Because Miller had to file his administrative tort claim with the Bureau
of Prisons and receive a final denial of his claims pursuant to 28 U.S.C.
§2675(a) prior to filing his lawsuit, and he failed to do so, this Court lacks
jurisdiction over the claims. McNeil v. United States, 508 U.S. 106, 111-112
(1993) (holding that a court is without jurisdiction to rule on a prematurely filed
action even if an agency denies the related administrative claim soon after the

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federal lawsuit is filed); Accolla v. United States, 369 F. App’x 408, 409-10 (3d
Cir. 2010) (holding “because Accolla filed his FTCA action in federal court
before [the agency’s ruling on his administrative tort claim] and before the
expiration of the appropriate six month period, the District Court was without
jurisdiction to rule on the FTCA claim.”); Roma v. United States, 344 F.3d 352,
363 (3d Cir. 2003) (noting “the requirement that the appropriate federal
agency act on a claim before suit can be brought is jurisdictional and cannot
be waived.”).
To the extent that Miller argues in his brief in opposition that he
“followed through many time on their Administrative Remedy System all the
way to Central Office Washington, D.C., in to the Region Office on August 30,
2013", (Doc. 20 at 2, Brief in Opposition), Miller’s completion of the BOP’s
administrative remedy process set forth at 28 C.F.R. §542, et seq., however,
does not satisfy the exhaustion requirements of the FTCA. See Robinson v.
United States, 2014 WL 2940454, *6 (M.D. Pa. Jun. 30, 2014) (recognizing
that “an inmate may not rely upon the submission of prison grievances to
satisfy his separate and independent exhaustion obligation under the FTCA”).
Consequently, the Court does not have jurisdiction to hear Miller’s tort claim,
and the Defendant is entitled to summary judgment.

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B.

Claims Based on Disciplinary Proceedings

The sanctions levied against Miller were all imposed as a result of
prison misconduct. As such, the Court finds that any claim for monetary
damages regarding his disciplinary hearing is barred under Heck v.
Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641
(1997).
A prisoner cannot bring an action for monetary damages against prison
officials relating to procedural errors in a disciplinary proceeding when a
judgment in favor of the inmate would necessarily imply the invalidity of the
disciplinary hearing, unless the inmate can demonstrate that the disciplinary
finding has previously been invalidated. See Edwards v. Balisok, 520 U.S.
641 (1997).
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that
a person convicted of a criminal offense could not bring a civil rights action
challenging any aspect of the criminal conviction without first using
appropriate procedural mechanisms to overturn the criminal proceeding.
Later, in Balisok, 520 U.S. at 646, the Supreme Court extended the rationale
of Heck to disciplinary proceedings in the prison context, holding an inmate
may not bring a civil rights action for damages related to an inmate

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disciplinary proceeding without first challenging and overturning, via the
appropriate proceedings, the disciplinary hearing in question. See id.
“Similarly, plaintiff’s claims are not cognizable under the FTCA insofar as a
ruling in plaintiff’s favor would imply the invalidity of plaintiff’s disciplinary
conviction.” Hinton v. United States, 91 Fed. Appx. 491, 493 (6th Cir. 2004)
(citing Parris v. United States, 45 F. 3d 383, 385 (10th Cir. 1995); Butcher v.
United States, 2007 WL 2207902, *3 (M.D. Pa. Jul. 30, 2007).
There is no evidence of record demonstrating that Miller’s disciplinary
sanctions have ever been called into question, or overturned through a
collateral action, such as a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. In fact, the record evidence reveals that these sanctions still
remain on Miller’s disciplinary record. Consequently, Miller’s claims are plainly
barred by Heck and Edwards, and the United States is entitled to summary
judgment.

V.

Conclusion
Based upon the undisputed facts of record, Defendant is entitled to

summary judgment with respect to Plaintiff’s FTCA Claim and his request for
damages regarding his disciplinary proceedings. An appropriate order shall

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issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: November 6, 2014
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2014 MEMORANDA\14-0370-01.wpd

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