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 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s))(bs)

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Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Lester BUTCHER, Plaintiff,
v.
UNITED STATES of America, et al., Defendants.
Civil Action No. 1:06-CV-2243.
July 30, 2007.
Lester Butcher, Waymart, PA, pro se.
Dennis Pfannenschmidt, U.S.
Harrisburg, PA, for Defendants.

Attorney's

Office,

with staff in performance of duties (high severity) and
Most like Assaulting any person (minor assault).” (Doc. 2,
p. 5). The incident was described by the reporting officer
as follows:
On 10-13-05 at approximately 2:00 p.m., after
completing a search of cell 224L A-1 unit, I walked out
of the cell carrying confiscated items. Inmate Lester
Butcher, # 03969-078, approached me and asked what
I had. When I told him I was confiscating his head
phones he said “no, those are mine” he then grabbed my
hand and took the head phones from me. I then ordered
him to return the head phones to me. He complied. I
then notified the Operations Lieutenants. Inmate
Butcher was medically assessed and no injuries were
noted. I was medically assessed and had no injuries.
Id.

MEMORANDUM
CHRISTOPHER C. CONNER, United States District
Judge.
*1 Presently before the court is a motion to dismiss
(Doc. 15) plaintiff Lester Butcher's (“Butcher”) Federal
Tort Claim Act FN1 (“FTCA”) complaint pursuant to
Fed.R.Civ.P. 12(b)(6), filed on behalf of the United States.
For the reasons discussed below, defendant's motion will
be granted and the claims against the United States
Department of Justice and the Federal Bureau of Prisons
will be dismissed for lack of jurisdiction.
FN1. The FTCA is the exclusive remedy for
claims of tort against employees of the
government. See U.S. v. Smith, 499 U.S. 160,
161-62, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991)
(citing 28 U.S.C. § 2679(b)(1)); Schrob v.
Catterson, 967 F.2d 929, 934 (3d Cir.1992).
I. Statement of Facts
Plaintiff filed an FTCA complaint on November 17,
2006, seeking monetary relief based on the negligent
procedures employed during the course of his disciplinary
proceeding. He alleges that on October 14, 2005, he
received an incident report charging him with “Interfering

The disciplinary hearing was held on October 27,
2005. (Doc. 2, p. 7). After being advised of his rights, and
indicating that he understood them, Butcher made the
following statement:
I never grabbed her hand. I was at the microwave while
she was searching my cell. When she was finished, she
came over to where I was and asked if I liked tattoos. I
thought that maybe she found something to do tattoos
with or something like that. I told her I don't do tattoos
and asked her if she found something in my room. She
said she took some headphones that were altered. I told
her that my headphones were not altered, at this point
she opened the bag to show me the headphones. I
reached into the bag to show her the headphones were
not altered and then I put them back in the bag and told
her I wanted a confiscation form. I later asked her again
for a confiscation form, as I have lost a lot of property
in the past this same way. I think that she just did this
because she was mad because I asked her for a
confiscation form. At no time did I touch her.
(Id.) Butcher's staff representative noted no
discrepancies in the disciplinary process, and reported that
he met with Butcher in advance of the hearing to discuss

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the case and, as requested by Butcher, viewed the
surveillance video tape of the incident. (Id.) When
questioned about the content of the video tape, the staff
representative indicated that “he could not tell if Butcher
had actually grabbed the officer's hand, as the angle of the
camera only showed the officer's back and blocked the
view of the actual incident as written.” (Doc. 2, p. 8). Two
inmate witnesses testified that they witnessed the
disagreement over the headphones and one of the
witnesses described Butcher's temperament as “heated .”
(Id.) However, both inmates testified that they did not see
him take headphones from the officer or grab the officer's
hand. (Id.) Butcher requested that the reporting officer be
present. The DHO believed that she was an adverse
witness, and felt that her account of the incident was
adequately summarized in the incident report. Hence, he
did not call her to testify. (Id.)
*2 The DHO, in weighing the above evidence, concluded
as follows:
After the consideration of all evidence, the DHO has
drawn the conclusion [from the] greater weight of the
evidence; specifically, the eyewitness account of the
reporting staff member, that Butcher grabbed her hand,
Aponte's [inmate witness] statement that Butcher was
heated during the incident, coupled with the inmate's
statement that he did take the headphones without the
officer's consent, [that] the prohibited act of Interfering
with staff in the performance of their duties (most like
assaulting any person), Code 298, was committed.
(Id.) Butcher was sanctioned with thirty days of
disciplinary segregation, twenty-seven days disallowance
of good conduct time, and ninety days loss of telephone
privileges based on the following:
Interfering with staff in the performance of their duties
(most like assault), hinders staff's ability to effectively
and efficiently perform duties commensurate with their
assigned duties. This type of behavior is considered
disruptive to the security and orderly running of the
institution which requires punishment. The sanctions
imposed by the DHO were taken to let the inmate know
that he, and he alone, will be held responsible for his
behavior.

It was noted that Butcher has a past disciplinary record
of assaulting staff and fighting with other inmates. The
sanctions of disciplinary segregation and loss of good
conduct time were imposed to demonstrate the
seriousness of the prohibited act and as punishment for
his conduct. The loss of telephone privileges was
imposed to deter further behavior. It is hoped that these
sanctions prompt Butcher to modify his interactions
with staff in the future.
(Id.)
On appeal, it was concluded that Butcher's due
process rights were upheld during the disciplinary process,
that the greater weight of the evidence supported the
DHO's decision, and that the sanctions were
commensurate to the severity level of the offense and in
compliance with policy. (Doc. 2, p. 12).
Some time after the filing of the instant FTCA complaint,
Butcher filed a petition for writ of habeas corpus pursuant
to § 2241 with this court, challenging the above
disciplinary proceeding and seeking restoration of his
good conduct time. Butcher v. United States, No.
1:07-CV-0546. On July 23, 2007, the petition was denied.
Butcher v. United States, No. 1:07-CV-0546, slip op. at 9
(M.D.Pa. July 23, 2007).
II. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for
dismissal of a claim that fails to assert a basis upon which
relief can be granted. FED. R. CIV. P. 12(b)(6). In the
context of a motion to dismiss under Rule 12(b)(6), the
court must accept as true all of the factual allegations in
the complaint and all reasonable inferences that can be
drawn therefrom. Langford v. City of Atlantic City, 235
F.3d 845, 847 (3d Cir.2000) (citing Nami v. Fauver, 82
F.3d 63, 65 (3d Cir.1996)). Although the court is generally
limited in its review to the facts alleged in the complaint,
it “may also consider matters of public record, orders,
exhibits attached to the complaint and items appearing in
the record of the case.” Oshiver v. Levin, Fishbein, Sedran
& Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir.1994); see
also In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir.1997) (stating that, although “a district
court ruling on a motion to dismiss may not [generally]

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consider matters extraneous to the pleadings[,] ... a
document integral to or explicitly relied upon in the
complaint” may be considered “without converting the
motion [to dismiss] into one for summary judgment”)
(quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194,
1224 (1st Cir.1996)).
III. Discussion
*3 Defendant first argues that plaintiff's complaint is
subject to dismissal because “Butcher failed to first
successfully challenge the procedures employed and the
ultimate decisions by way of habeas corpus petitions.”
(Doc. 16, p. 8). The Court agrees.
In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364,
129 L.Ed.2d 383 (1994), the Supreme Court ruled that a
constitutional cause of action for damages does not accrue
“for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence
invalid,” until the plaintiff proves that the “conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus.” Id. at 486-87. Thereafter, the Supreme Court
applied the lessons of Heck to an action challenging the
constitutionality of prison disciplinary procedures wherein
the plaintiff was seeking compensatory and punitive
damages, not the restoration of the loss of good conduct
time. Edwards v. Balisok, 520 U.S. 641, 646, 117 S.Ct.
1584, 137 L.Ed.2d 906 (1997). The Edwards Court
concluded that such a claim is not cognizable if a
favorable outcome would necessarily imply the invalidity
of the challenged judgment, which in that case was a
disciplinary conviction and punishment. Edwards, 520
U.S. at 646-48.
Similarly, it has been found that claims are not cognizable
under the FTCA insofar as a ruling in plaintiff's favor
would imply the invalidity of a conviction. See Parris v.
United States, 45 F.3d 383, 385 (10th Cir.1995); Erlin v.
United States, 364 F.3d 1127, 1133 (9th Cir.1994)
(finding that an FTCA claim “for negligently calculating
a prisoner's release date, or otherwise wrongfully
imprisoning the prisoner, does not accrue until the
prisoner has established, in a direct or collateral attack on

his imprisonment, that he is entitled to release from
custody.”); Watkins v. Holt, 2006 WL 2331090, at *2
(D.D.C.2006) (applying Heck in an FTCA action alleging
negligence by Bureau of Prisons employees in
miscalculating a prison sentence and holding that “absent
a showing that plaintiff's conviction or sentence is invalid,
he cannot recover damages under the FTCA.”); Rashid v.
Monteverde & Hemphill, 1997 WL 360922, at * 7 n. 15
(E.D.Pa.1997) (applying Heck to FTCA claims involving
false arrest, false imprisonment and malicious
prosecution). This rule has also been applied to a
conviction obtained via a disciplinary hearing proceeding.
See Hinton v. United States, 91 Fed. Appx. 491, 2004 WL
540473 (6th Cir.2003) (not recommended for full text
publication) (in applying Heck, the appellate court held
“here, plaintiff seeks return of the documents for which he
stands convicted of forging or counterfeiting, and money
damages for the allegedly tortious confiscation of the
documents ... 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.”). Although the United States Court of
Appeals for the Third Circuit has not specifically applied
the Heck rule in the FTCA context, the Court is persuaded
by the reasoning of the other courts that have applied the
rule.
*4 In the matter sub judice, plaintiff seeks monetary
damages due to the negligent procedure employed in
conducting his disciplinary proceeding. This court has
considered, and rejected, Butcher's § 2241 petition that
raised the identical issues raised here. Clearly, an
adjudication in his favor on the FTCA would implicate the
continued validity of his prison disciplinary conviction
and sanctions and would fly in the face of this Court's
prior determination regarding the validity of that
conviction. Consequently, his claim is not cognizable and
defendant's motion to dismiss will be granted.
Finally, the FTCA provides absolute immunity to federal
agencies and federal employees for liability on tort claims.
28 U.S.C. § 2679(a), (b)(1); see U.S. v. Smith, 499 U.S.
160, 161-65, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991). It
is well-established that a complaint filed pursuant to the
FTCA must be brought against the United States. 28
U.S.C. § 2679(b)(1). An agency or employee of the

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United States is not a proper defendant in such an action.
28 U.S.C. § 2679(b); Sprecher v. Graber, 716 F.2d 968,
973 (2d Cir.1983). Because the FTCA authorizes suits
only against the United States, see 28 U.S.C. § 2679,
Butcher's claims against the United States Department of
Justice and the Federal Bureau of Prisons will be
dismissed for lack of jurisdiction.
An appropriate order will issue.
ORDER
AND NOW, this 30th day of July, 2007, upon
consideration of defendant's motion to dismiss (Doc. 15)
plaintiff's complaint, it is hereby ORDERED that:
1. The claims against the United States Department of
Justice and the Federal Bureau of Prisons are
DISMISSED for lack of jurisdiction. See 28 U.S.C. §
2679.
2. Defendant's motion to dismiss (Doc. 15) is GRANTED.
The complaint against the United States is hereby
DISMISSED.
3. The Clerk of Court is directed to CLOSE this case.
4. Any appeal from this order is DEEMED frivolous
and not in good faith. See 28 U.S.C. § 1915(a)(3).
M.D.Pa.,2007.
Butcher v. U.S.
Not Reported in F.Supp.2d, 2007 WL 2207902 (M.D.Pa.)
END OF DOCUMENT

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