Boomer v. United States of America, Dept of Justice et al

Filing 211

MEMORANDUM (Order to follow as separate docket entry)There have been no facts presented which would support a claim that Plaintiff should not have been assigned a cell mate while at USP-Lewisburg. It has not been suggested that any of the cell mates at issue had any prior history with Boomer or were listed as separtees from one another. The assignment of cell mates clearly is a discretionary decision. As such, such decision making by USP-Lewiburg staff falls within the discretionary function exception. Accordingly, entry of summary judgment in favor of the Defendant under the discretionary function exception is also warranted. An appropriate Order will enter.DATED: MARCH 21, 2017 re 164 Second MOTION for Summary Judgment Signed by Honorable Richard P. Conaboy on 3/21/17. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

RODNEY BOOMER,
Plaintiff

:
:
:
v.
:
CIVIL NO. 3:CV-14-1692
:
:
(Judge Conaboy)
CHARLES SAMUELS, ET AL.,
:
Defendants
:
___________________________________________________________________
MEMORANDUM
Background
This pro se action pursuant to the Federal Tort Claims Act
(FTCA) was filed by Rodney Boomer, an inmate presently confined at
the United States Penitentiary, Coleman, Florida (USP-Coleman).
Named as sole Defendant is the United States of America.1

An

Amended Complaint (Doc. 10) was previously filed.
By Memorandum and Order dated September 30, 2015, Defendant’s
motion for summary judgment was partially granted.

See Doc. 89.

Summary judgment was granted with respect to all claims except
Boomer’s allegations that officials at the United States
Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg) negligently
failed to protect his safety.
Boomer was arrested and taken into federal custody on February
21, 2006.

According to the Amended Complaint, paperwork relating

1

The only proper Defendant for purposes of an FTCA claim is
the United States of America. See 28 U.S.C. § 2679(d).
1

to Plaintiff’s criminal case which was readily accessible to other
prisoners via an electronic legal research database falsely
indicated that he had cooperated with state and federal law
enforcement authorities.

Plaintiff allegedly discovered that this

false accusation of police cooperation in 2008 while confined at
the Federal Correctional Institution, Gilmer, West Virginia (FCIGilmer).
Plaintiff claims that his written notification that the false
accusation had placed his life in danger was ignored by the Bureau
of Prisons (BOP).

Prior to his arrival at USP-Lewisburg, Boomer

asserts that he was almost killed by inmates at four federal
correctional facilities where he was previously confined.

As s

result of those incidents, Plainitff was placed in solitary
confinement at some of those facilities.

The Amended Complaint

indicates federal prison officials continually ignored his repeated
requests for protection
Boomer arrived at USP-Lewisburg on July 23, 2013 and was
immediately placed in the prison’s Special Management Unit (SMU).
It is undisputed that upon his arrival at the prison, Boomer
informed staff during an interview that he could not be housed with
any inmates who were either from New York or had gang affiliation.
See Doc. 178, pp. 7-8.

On August 23, 2013, Plaintiff states that

he was involved in an altercation with his USP-Lewisburg cell mate
after he refused to turn over copies of his federal criminal case
paperwork.

A second altercation transpired on October 22, 2013
2

when Boomer was purportedly accused by another prisoner of
cooperating with authorities.
On November 1, 2013, a third more serious incident allegedly
transpired when Plaintiff’s cell mate assaulted him after
indicating that Boomer had cooperated with law enforcement.

As a

result of this attack, Plaintiff was hospitalized for a concussion,
facial fractures and a broken left hand and elbow.

See id. at ¶

20. Boomer was transferred to X Block at USP-Lewisburg on November
5, 2013 where he remained until January 1, 2014.2

Plaintiff

returned to X Block on November 20, 2014 and remained there until
his December 20, 2015 transfer to USP-Coleman.
The Amended Complaint contends that the above described
assaults at USP-Lewisburg took place because prison officials
failed to adequately protect Boomer’s safety by negligently housing
him with gang members and New York City inmates who were aware of
the false rumor that he had cooperated with law enforcement
officials.
Presently pending is Defendant’s second motion for summary
judgment.
brief.

See Doc. 164.

The Plaintiff has not filed an opposing

However, Boomer has filed two motions to compel discovery

2

Information previusly provided to Court explained that X
Block is a segregated housing unit within the SMU which caters to
prisoners having greater security concerns and contains double
cells, larger living areas and private showers within the cell. An
X Block inmate does not share recreation with inmates who reside on
other housing blocks and in fact only has recreation with his cell
mate.
3

(Docs. 186 & 197); a motion for preliminary injunctive relief (Doc.
209);

and a request for an evidentiary hearing (Doc. 210).

All of

those pending motions will be addressed below.
Discussion
Motions To Compel
Boomer’s initial pending motion to compel asserts that the
Defendant has not produced two discoverable documents “which are
letters from Plaintiff to Defendant explaining his concerns about
his safety.”

Doc. 186, p. 2.

The second motion similarly seeks

production of those same letters.
Defendant asserts that Plaintiff never served it with a
request for the discovery materials at issue prior to the
expiration of the discovery period in this matter.

Since discovery

was closed for over four months prior to the date Plaintiff
allegedly served the discovery request at issue, since Plaintiff
was not granted leave to engage in additional discovery the
Defendant was under no obligation to provide a response,
Plaintiff’s pending motions to compel, his 9th and 10th such motions
in this case, will be denied.
Preliminary Injunctive Relief
Plaintiff’s motion asserts that he has been denied adequate
care by the medical staff at USP-Coleman, his current place of
confinement.3
3

Boomer indicates that he has neurological and

The motion does include a notation that his pending FTCA
(continued...)
4

physical mobility problems which are worsening and requests to be
seen by a neurologist.
It is initially noted that M.D. Pa. Local Rule 7.5 requires
that a party who files a pretrial motion submit a brief in support
of said motion within fourteen (14) days of its being filed with
the court.

If a supporting brief is not timely filed, “such motion

shall be deemed to be withdrawn.”

A review of the docket

establishes that Plaintiff has failed to filed a brief in support
of his motion.

Consequently, it is appropriate for Boomer’s

pending motion for preliminary injunctive relief to be deemed
withdrawn.
In addition, Plaintiff’s motion is totally unrelated to the
claims before this court and USP-Coleman is not located within the
confines of the Middle District of Pennsylvania.

If Plaintiff

feels that he is presently being denied adequate medical care at
USP-Coleman he should seek relief before a federal court of
appropriate jurisdiction.

Boomer’s motion for preliminary

injunctive relief will be dismissed.
Evidentiary Hearing
Plaintiff has also filed a request asking that an evidentiary
hearing or in the alternative “mitigation” (presumably mediation)
be scheduled.

Based upon this Court review of the record, an

3

(...continued)
claim are meritorious because Plaintiff was assaulted while
residing in USP-Lewisburg D-Block on November 1, 2013 and was not
moved to X Block until November 5, 2013. Doc. 209, p. 2.
5

evidentiary hearing is not required for disposition of the pending
summary judgment motion.

If this Court determines that any of

Boomer’s claims should proceed, his request will be reconsidered
Summary Judgment
Defendant argues that it is entitled to entry of summary
judgment because: (1) the negligent failure to protect claims fail
and (2) the discretionary function exception bars consideration of
Boomer’s claims.
Standard of Review
Summary judgment is proper 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 a judgment as a matter of law.”

Fed. R. Civ.

P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001).

A factual dispute is “material” if it might affect the

outcome of the suit under the applicable law.
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

A factual dispute is

“genuine” only if there is a sufficient evidentiary basis that
would allow a reasonable fact-finder to return a verdict for the
non-moving party.

Id. at 248.

The court must resolve all doubts

as to the existence of a genuine issue of material fact in favor of
the non-moving party.

Saldana, 260 F.3d at 232; see also Reeder v.

Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered

6

evidence of asserted facts.

Versarge v. Township of Clinton, 984

F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the nonmoving party may not simply sit back and rest on the allegations in
its complaint.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 324

Instead, it must “go beyond the pleadings and by [its] own

affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.”

Id. (internal quotations omitted); see

also Saldana, 260 F.3d at 232 (citations omitted).

Summary

judgment should be granted where a party “fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden at
trial.”

Celotex, 477 U.S. at 322-23.

“‘Such affirmative evidence

– regardless of whether it is direct or circumstantial – must
amount to more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.’”

Saldana, 260 F.3d

at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d Cir. 1989)).
Failure to Protect
It is undisputed that following his arrival at USP-Lewisburg
Plaintiff was involved in three separate altercations with three
different cell mates.

Plaintiff contends that these assaults

stemmed from prison’s officials’ negligent failure to protect him
from harm after being advised that information from his criminal
7

case which was available to prisoners through a legal research web
site placed him at risk.

It is also asserted that USP-Lewisburg

staff was negligent for not immediately conducting a threat
assessment upon Boomer’s entry into that facility.
As previously discussed by the September 30, 2015 Memorandum
and Order, the FTCA provides a remedy in damages for the simple
negligence of employees of the United States.
Muniz, 374 U.S. 150, 150 (1963).

See United States v.

Sovereign immunity is waived

under the FTCA against persons suing the federal government for the
commission of various torts.

See Simon v. United States, 341 F. 3d

193, 200 (3d Cir. 2003).
In order to succeed on his FTCA claim, Boomer must show:

(1)

that a duty was owed to him by a defendant; (2) a negligent breach
of said duty; and (3) that the negligent breach was the proximate
cause of the plaintiff's injury/loss.
F. Supp. 362, 364 (W.D. Pa. 1961).

Mahler v. United States, 196

Generally speaking, recovery on

an FTCA claim is limited to of the sum certain amount requested in
the underlying administrative claim.

See McMichael v. United

States, 856 F.2d 1026, 1035 (8th Cir. 1988).
A federal district court addressing an FTCA action must apply
the law of the state, in this case Pennsylvania, in which the
alleged tortious conduct occurred.

28 U.S.C. § 1346(b) (1996);

Toole v. United States, 588 F.2d 403, 406 (3d Cir. 1978); O'Neal v.
Department of Army, 852 F. Supp. 327, 334-35 (M.D. Pa. 1994);
Turner v. Miller, 679 F. Supp. 441, 443 (M.D. Pa. 1987).
in cases such as this which involves a federal inmate, the

However,

8

government's duty of care is one of ordinary diligence.
U.S.C. § 4042; Turner, 679 F. Supp. at 443.

See 18

The applicable law

with respect to the burden and quantum of proof under the FTCA
remains that of the state in which the alleged tortious conduct
occurred.

Hossic v. United States, 682 F. Supp. 23, 25 (M.D. Pa.

1987). Pennsylvania law requires a plaintiff to show that the
defendant's negligence was the proximate cause of his injury by a
preponderance of the evidence.

Baum v. United States, 541 F. Supp.

1349, 1351 (M.D. Pa. 1982).4
Defendant argues that based upon the undisputed facts,
“[t]here is a complete absence of any record evidence that staff
members failed to perform appropriate investigations prior to
assigning Boomer’s housing during his incarceration at USPLewisburg.”

Doc. 178, p. 13.

They add that the safety concerns

expressed by Plaintiff during his USP-Lewisburg intake interview
were addressed in that he was housed apart from the two groups of
inmates he deemed to pose a threat.

Furthermore, although a threat

assessment was not performed until February 2014, only limited
additional action was required as Plaintiff was already being
separated from the inmates who he identified as being potential
threats.
A declaration under penalty of perjury by USP-Lewisburg
Special Investigative Agent James Fosnot provides that upon

4

Pennsylvania law defines proximate cause as causation which
was a substantial factor in bringing about the injury. Hamil v.
Bashline, 392 A.2d 1280, 1284 (Pa. 1978).
9

Plaintiff’s arrival at USP-Lewisburg a Special Investigative
Supervisor interview was conduct.5
3.

See Doc. 177-1, Exhibit A, p.

During that interview, Boomer informed prison staff of his need

to be separated from inmates with gang affiliations and from New
York.

According to Fosnot, Boomer was thereafter assigned a cell

mate who was neither from New York or who had any gang
affiliations.

See id. at ¶ 10. It was this prisoner who had an

altercation with Plaintiff on August 23, 2013.
Following that incident, Fosnot states that Plaintiff received
a new cell mate who was also neither from New York nor gang
affiliated.

This was the prisoner who Boomer fought with on

October 22, 2013.

The third inmate who fought with Plaintiff on

November 1, 2013 was also not from New York nor affiliated with a
gang.

Moreover, none of the prisoners involved in the three

incidents underlying Plaintiff’s failure to protect claim were
listed as being separtees from Boomer at the time they were housed
together.

The Court has also been provided with information

showing that two of the three alleged assailants never employed the
USP-Lewisburg electronic law library (ELL) from the time of their
respective arrivals at the prison to the dates of their respective
altercations with Boomer.

See Doc. 171, Exhibit B.

The third

prisoner did not use ELL at any poin during 2013, the year Boomer
arrived at USP-Lewisburg.

As such, there would be no basis for a

determination that they would be aware that information available

5

A copy of the written screening report which has been
submitted confirms Fosnot’s declaration.
10

on ELL indicated that Boomer cooperated with law enforcement.
Finally, reports relating to the misconduct charges filed following
the three fights contain no indication that the fisticuffs were the
result of suspicions that Plaintiff had cooperated with law
enforcement.
Also submitted for consideration are Plaintiff’s responses to
Defendant’s second set of interrogatories and a copy of his March
31, 2016 deposition testimony.

Those submissions show that

Plaintiff admits that because of memory and medical issues he
cannot recall the names of the his former USP-Lewisburg cell mates
nor even provide a description of those individuals.

Boomer

further testified that he remembers only that he was assaulted at
USP-Lewisburg and cannot provide any details regarding any assault
or assailant.
Based upon the undisputed facts, Plaintiff was interviewed
regarding his security concerns when he arrived at USP-Lewisburg
but a threat assessment was not conducted until February, 2014.
During his interview, Boomer stated that he needed to be kept
separate from prisoners who were from New York and gang members.
Prison official acted in accordance with that request and there is
no assertion that an earlier threat assessment would have revealed
any other safety concerns.
Undisputed evidence provided by the Defendant establishes that
the three different cell mates who were subsequently involved in
altercations with Boomer were not from New York and had no gang
affiliations.

Inmate Boomer was housed in the SMU while at USP11

Lewisburg and in the SMU’s X Block, a segregated housing unit,
a significant portion of his USP-Lewisburg stay.

for

Given those

undisputed considerations coupled with Plaintiff’s assertion that
he cannot recall any specifics relating to his USP-Lewisburg stay,
the Defendant has both addressed the concerns outlined by this
Court’s September 30, 2015 Memorandum and Order and satisfied its
burden of showing that there is no basis for a claim that the
Defendant’s negligence was the proximate cause of the underlying
altercations. The record clearly supports a finding that the prison
officials exercised ordinary diligence in that they acted on
Plaintiff’s request not to be assigned cell mates who ere from New
York or gang affiliated.

As such, granting the request for entry

of summary is appropriate.
Discretionary Function Exception
The Defendant’s remaining summary judgment argument contends
that Plaintiff’s claims are precluded from consideration by the
FTCA’s discretionary function exception.

See Doc. 178, p. 16.

They explain that Plaintiff’s security issues were addressed and he
was only assigned cell mates who did not fall within the categories
of concern expressed by Boomer.

Since the challenged cell

assignments were discretionary decisions and Plaintiff was only
housed with prisoners who were not previously known to pose a
threat to his safety, the Defendant concludes that those decisions
fall under the discretionary function exception of the FTCA.
id. at p. 21.
A significant limitation on FTCA claims is imposed by 28
12

See

U.S.C. § 2680(a), which provides that liability may not be premised
on a claim against a government employee which is

“based upon the

exercise or performance or the failure to exercise or perform a
discretionary function or duty.”

“Conduct is not discretionary

unless it involves an element of judgment or choice.’
United States,

Koch v.

814 F. Supp. 1221, 1227 (M.D. Pa. 1993).

In

Berkovitz v. United States, 486 U.S. 531 (1988), the United States
Supreme Court adopted a two part inquiry with respect to § 2680(a).
First, a court must decide if "a federal statute, regulation or
policy specifically prescribes a course of action for an employee
to follow."

Id. at 536.

If so, "the employee has no rightful

option but to adhere to the directive."

Id. The second part of

the inquiry provides that if the decision was one “which balances
competing considerations or identifiable policy factors such as
budgetary considerations, safety concerns, allocation of limited
resources, etc. may be discretionary.”

Koch, 814 F. Supp at 1227,

citing Johnson v. United States, Department of the Interior, 949
F.2d 332, 340 (10th Cir. 1991).
As previously discussed,18 U.S.C. § 4042 imposes a general
duty of care on the Federal Bureau of Prisons (BOP) to safeguard
its prisoners.

However, the regulation does not dictate the manner

by which that duty is to be fulfilled.
151 F.3d

1338,1343 (11th Cir. 1998).

See Cohen v. United States,
Hence, the BOP has the

ability to exercise its judgment on how its duty under § 4042 is to
be fulfilled.

Federal employees such as correctional officers

employed by the BOP simply “do not have discretion to violate
13

mandatory requirements” or constitutional rights.

Koch, 814 F.

Supp. at 1228.
With respect to the first prong of Berkovitz, while the BOP
imposes a duty upon its employees to use reasonable care and
ordinary diligence to protect the safety of inmates, there is no
indication that there was a specific federal statute or regulation
or policy which required the USP-Lewisburg correctional staff to
take a particular course of action to ensure Boomer’s safety from
being assaulted by other inmates.

See Donaldson v. United States,

281 Fed. Appx. 75 (3d Cir. 2008).
Clearly, the decision as to where and with whom to house
Boomer involved an element of choice.

The “BOP retains sufficient

discretion in the means it may use to fulfill” its duty of
protecting prisoners from being assaulted by other inmates.

Id. at

77.
Although the Plaintiff was not initially placed in X Block
upon his arrival and there was not a threat assessment immediately
performed, the supporting materials submitted by the Defendant in
support of its summary judgment argument nonetheless show that the
BOP used reasonable decision making in an effort to protect Boomer
from attacks by other prisoners.

The undisputed facts show that

upon his arrival at USP-Lewisburg Boomer was immediately placed in
the SMU and he was not assigned any cell mates who fit into the
wide categories of concern expressed by the Plaintiff himself
(specifically, prisoners from New York or those with gang
affiliations).
14

As recognized by the Third Circuit Court of Appeals, a
judgment as to the best way to protect prisoners from attack by
other prisoners is the type of decision that the discretionary
function exception was designed to shield.

Thrower v. United

States, 528 Fed. Appx. 108, 110 (3d Cir. 2013).

Since the

challenged actions of the prison officials in this case clearly
involved an element of choice and their assignment of cell mates
for Boomer clearly took into consideration the fears expressed by
that inmate, the concerns expressed by the September 30, 2015
Memorandum and Order have been satisfied and this Court agrees that
the discretionary function exception is applicable.

See Rinaldi v.

United States, 460 Fed. Appx. 80, 81-82 (3d Cir. 2012)
There have been no facts presented which would support a claim
that Plaintiff should not have been assigned a cell mate while at
USP-Lewisburg.

It has not been suggested that any of the cell

mates at issue had any prior history with Boomer or were listed as
separtees from one another.
is a discretionary decision.

The assignment of cell mates clearly
As such, such decision making by USP-

Lewiburg staff falls within the discretionary function exception.
Accordingly, entry of summary judgment in favor of the Defendant
under the discretionary function exception is also warranted.
appropriate Order will enter.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: MARCH 21, 2017
15

An