Peraza v. UNITED STATES OF AMERICA
MEMORANDUM (Order to follow as separate docket entry)Based upon the wealth of undisputed evidence submitted by the Defendant, especially the videotapes of the underlying applications of restraints and Plaintiffs institutional medical records as well as the prison monitoring logs following each restraint placement, it is clear that, even viewing the record in a light most favorable to the pro se Plaintiff, there is substantial evidence showing that the applications of restraints underlying this m atter were carried out in a reasonable and non-negligent fashion. In light of Plaintiffs failure to come forward with expert testimony and his repeated statements that he was manipulating his restraints to cause injury so that he could pursue litigation, entry of summary judgment is warranted. An appropriate Order will enter.re 27 MOTION to Dismiss MOTION for Summary Judgment filed by UNITED STATES OF AMERICA Signed by Honorable Richard P. Conaboy on 3/28/17. (cc)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Paul Peraza, an inmate presently confined at the United
States Penitentiary, Beaumont, Texas filed this pro se Federal Tort
Claims Act (FTCA) complaint.
States of America.
Named as Defendant is the United
Service of the Complaint was previously
Plaintiff states that while previously confined by the
Federal Bureau of Prisons (BOP) at the United States Penitentiary,
Lewisburg, Pennsylvania (USP-Lewisburg) he was improperly placed
in restraints on April 1, 2014, June 3, 2014, and July 31, 2014.
See Doc. 1, ¶ IV (2).
The Complaint contends that the initial use
of ambulatory restraints on all three dates was unwarranted and
they were applied out of sight from surveillance cameras because
they “were purposefully placed on the plaintiff as tightly as
possible to purposefully cause the plaintiff harm.”1
Id. at (3).
Ambulatory restraints are commonly described as soft and
hard restraint equipment (hand, leg, and waist restraints) which
still allow a prisoner to eat, drink, and take care of basic human
needs without staff intervention.
It is also alleged that despite the Plaintiff’s complaints, prison
officials including medical staff members refused to loosen the
restraints causing him to suffer nerve damage and permanent
Peraza elaborates that on April 1, 2014 prison officials
placed him in ambulatory restraints as tightly as possible to
teach him a lesson.2
While those restraints were being applied,
Peraza claims that he was choked by a correctional officer to keep
him quiet while videotaping was being performed.
restraints were applied, Plaintiff asserts that he was struck on
the left side of his face by a correctional lieutenant.
After being in ambulatory restraints for a period of four
(4) hours, the Plaintiff was allegedly transferred to overly tight
four point restraints because he was making noise.3
purportedly remained in the four point restraints for six (6)
hours until he was returned to ambulatory restraints for another
eighteen (18) hours.4
On June 3, 2014, Peraza contends that he was left in
Defendant points out that the restraints were actually
employed on April 2, 2014.
Four point restraints are viewed as being a measure of
last resort. See Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir.
1996)(courts have approved the limited use of four point
restraints, chaining a prisoner to his bed in a spreadeagle
position, when other forms of prison discipline have failed).
It is noted that during one restraint check Plaintiff’s
leg restraints were slightly loosened.
overly tight ambulatory restraints for fourteen (14) hours and was
also purportedly struck on the chin by a correctional officer with
a closed fist as those restraints were being applied.
See Id. at
The Complaint adds that prison corrections and medical
staff members ignored the inmate’s requests to have the restraints
Peraza similarly asserts that he was subjected to
unnecessary physical abuse during a purportedly unwarranted July
31, 2014 application of ambulatory restraints which were again
applied too tightly. He also alleges that staff ignored his
requests for the restraints to be loosened.
With respect to his
allegation of excessive force, Plaintiff maintains that he was
choked by an officer in an effort to keep him quiet.
Complaint adds that Peraza was subsequently placed in an
unsanitary cell where he was forced to clean a toilet with his
bare hands and denied opportunity to wash his hands prior to
eating while in ambulatory restraints for twenty-eight (28) hours.
Defendant has responded to the Complaint by filing a
motion to dismiss or in the alternative for summary judgment.
The opposed motion is ripe for consideration.
Motion to Dismiss
Defendant’s pending dispositive motion is supported by
evidentiary materials outside the pleadings.
Federal Rule of
Civil Procedure 12(d) provides in part as follows:
If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleading are
presented to and not excluded by the
court, the motion must be treated as one
for summary judgment under Rule 56. All
parties must be given reasonable
opportunity to present all the material
that is pertinent to the motion.
Fed. R. Civ. P. 12(b)(d).
This Court will not exclude the evidentiary materials
accompanying the Defendant's motion.
Thus, the motion will be
treated as solely seeking summary judgment.
See Latham v. United
States, 306 Fed. Appx. 716, 718 (3d Cir. 2009)(when a motion to
dismiss has been framed alternatively as a motion for summary
judgment such as in the present case, the alternative filing “is
sufficient to place the parties on notice that summary judgment
might be entered.”
Defendant argues that it is entitled to entry of summary
judgment on the grounds that: (1) any constitutional claims
against the Defendant are barred by the doctrine of sovereign
immunity; (2) the discretionary function exception bars
consideration of Peraza’s claims since the BOP had cause to apply
restraints on all three occasions at issue; (3) indisputable
compelling evidence establishes that the restraints were properly
and reasonably applied and Plaintiff’s injuries were caused by his
own conduct; (4) the undisputed evidence, especially the videotape
footage, establishes that Plaintiff was not assaulted by
correctional staff; and (5) this action cannot proceed because
Plaintiff has no expert witness.
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.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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.
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 evidence of asserted facts.
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
non-moving party may not simply sit back and rest on the
allegations in its complaint.
U.S. 317, 324 (1986).
See Celotex Corp. v. Catrett, 477
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.”
quotations omitted); see also Saldana, 260 F.3d at 232 (citations
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
Saldana, 260 F.3d at 232 (quoting Williams v.
Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
The FTCA provides a remedy in damages for the simple
negligence of employees of the United States.
v. Muniz, 374 U.S. 150, 150 (1963).
See United States
Under the FTCA, sovereign
immunity is waived 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).
A plaintiff pursuing an FTCA claim 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.
196 F. Supp. 362, 364 (W.D. Pa. 1961).
Mahler v. United States,
The only proper Defendant
for purposes of an FTCA claim is the United States of America.
See 28 U.S.C. § 2679(d).
Except for limited circumstances, an
FTCA claim in federal court is limited to recovery of the sum
certain amount requested in the underlying administrative claim.
See McMichael v. United States, 856 F.2d 1026, 1035 (8th Cir.
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).
However, in cases such as this which involve federal prisoners, it
has been recognized that the government's duty of care is one of
See 18 U.S.C. § 4042; Turner, 679 F. Supp. at
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). Under Pennsylvania law, a
plaintiff is required to show that the defendant's negligence was
the proximate cause of his injury by a preponderance of the
Baum v. United States, 541 F. Supp. 1349, 1351 (M.D.
Defendants’ initial argument contends that Plaintiff’s
action, to the extent that it raises constitutional claims for
monetary damages, is barred by the doctrine of sovereign immunity.
See Doc. 42, p. 27.
The United States is generally immune from suit absent an
explicit waiver of sovereign immunity, United States v. Mitchell,
445 U.S. 535, 538 (1980).
This “immunity is jurisdictional in
FDIC v. Meyer, 510 U.S. 471, 475
(1994), and extends to
government agencies and employees sued in their official
Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996);
Chinchello v. Fenton, 805 F. 2d 126, 130, n. 4 (3d Cir. 1986).
“Congress has not waived sovereign immunity for damages
claims for constitutional violations.”
Germosen v. Reno, Civil
No. 99-1268, slip op. at 13 (M.D. Pa. Sept. 20, 2000)(Vanaskie,
Claims such as Plaintiff’s contention that he was housed
in an unsanitary cell without being able to wash his hands clearly
appear to be seeking relief under the Eighth Amendment.
Therefore, entry of summary judgment in favor of the Defendant is
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).
appropriate to the extent that the Complaint asserts claims that
USP-Lewisburg officials violated Peraza’s constitutional rights,
i.e., any Eight Amendment claims that Plaintiff was subjected to
excessive force or unconstitutional conditions of confinement.
The second summary judgment argument contends that since
the BOP had sufficient cause to apply restraints on all three
dates at issue, the inmate’s FTCA claims regarding the decisions
to do so are barred by the discretionary function exception.6
Doc. 42, p. 28.
In support of their argument, Defendant has submitted a
declaration under penalty of perjury by USP-Lewisburg Supervisory
Investigative Agent (SIA) Suzanne Heath.
See Doc. 41-1, p. 1.
Heath notes that Peraza has a history of escape and assault and
has been issued close to 100 misconducts during the course of his
She acknowledges that the BOP has policies
regarding the use of force against prisoners as well as the
application of restraints.
See 28 C.F.R. § 552.20, et seq.
Those regulations authorize prison staff to employ
restraints to the extent necessary to gain control over inmates
who have destroyed property; inflicted injury upon themselves;
This argument does not address any claims that restraints
were intentionally applied too tightly or that Plaintiff was
assaulted during the application of restraints. See Millbrook v.
United States, 133 S.Ct. 1441, 1444 (2013)(the United States waives
immunity for certain intentional torts committed by prison guards).
Rather, it is limited to the decision making process.
become violent or displayed signs of imminent violence.
adds that the BOP has special reporting requirements which are
triggered whenever such restraints are undertaken.7
points out that loosely applied restraints become ineffective as
well as a security issue.
In addition, Heath points out that
inmates can injure themselves by twisting and pulling on their
In light of those concerns, Peraza’s restraints were
According to Heath’s supporting declaration as well as
accompanying written reports and video footage from the three
dates at issue, Peraza became disruptive on April 2, 2014 when he
refused to allow staff to secure his hand restraints, made verbal
threats towards staff, and refused to allow his cell mate to be
See Tindell v. Beard, 351 Fed. Appx. 591, 596 (3d
Cir. 2009)(consideration of video footage when considering summary
judgment argument is appropriate).
When the Plaintiff eventually
submitted to hand restraints, he was removed from his cell
searched and placed into ambulatory restraints.
inmate attempted to circumvent application of the waist restraint
(a/k/a Martin Chain) by extending his abdominal muscles, it was
eventually placed in a proper fashion.
A medical assessment was
Correctional staff are required per BOP policy to check a
prisoner in four point restraints every fifteen minutes. In
addition a Lieutenant is required to conduct a restraint check
every two hours.
performed and revealed no injury.
Furthermore, the supervising
lieutenant checked the restraints to ensure that they were
While still in the restraints Peraza again became
disruptive approximately three hours later by trying to break a
stool in his cell and verbally threatening correctional officers.
As a result he was upgraded to four point restraints and a medical
assessment revealed no injury.
Approximately five hours later,
the Plaintiff was removed from the four point restraints after
calming down and was returned to ambulatory restraints until they
were removed the next day.
On June 3, 2014, Peraza began to repeatedly bang on his
He was placed in hand restraints, removed from his
cell and searched.
Meanwhile, his cell was searched.
the inmate refused to submit to hand restraints so that he could
be taken back to his cell and made threats towards correctional
As a result of his unruly behavior, Peraza was placed in
ambulatory restraints where he remained for approximately thirteen
Once again a medical assessment revealed no injury.
On July 31, 2014, Plaintiff allowed a meal tray being
delivered by a
correctional officer to fall to the floor and
accompanied that act with verbal threats.
This latest outburst
also resulted in the Plaintiff being placed in ambulatory
restraints for approximately twenty-seven (27) hours.
As previously discussed, a plaintiff presenting an FTCA
claim must show: (1) that a duty was owed to him by a defendant;
(2) a negligent breach of said duty; and (3) the negligent breach
was the proximate cause of the plaintiff's injury/loss.
United States is only liable under the FTCA for conduct by
government employees while acting within their scope of
Matsko v. United States, 372 F.3d 556, 559 (3d Cir.
The undisputed record shows that USP-Lewisburg officials
were acting within the scope of their employment
A significant limitation on FTCA claims is imposed by 28
U.S.C. § 2680(a), which provides that liability may not be
premised on a claim against a government employee which is
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
Koch v. United States,
814 F. Supp. 1221, 1227 (M.D.
Federal employees such as correctional officers
employed by the Bureau of Prisons simply “do not have discretion
to violate mandatory requirements” or constitutional rights.
Koch, 814 F. Supp. at 1228.
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."
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., it 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).
With respect to the first prong of Berkovitz, 18 U.S.C. §
4042 imposes a general duty of care on the BOP to safeguard its
However, the regulation does not dictate the manner by
which that duty is to be fulfilled.
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.
While the BOP imposes a duty upon its employees to use
reasonable care and ordinary diligence to protect the safety of
inmates, restraints may be employed at the discretion of prison
to the extent necessary to gain control over inmates
who have destroyed property; inflicted injury upon self; become
violent or displayed signs of imminent violence.
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 regarding their decisionmaking
as to whether or when to apply restraints to Peraza.
Since the challenged decision-making of the prison
officials in this case clearly involved an element of choice and
the determination to apply restraints, either ambulatory or four
point, was based upon consideration of legitimate issues of
correctional safety, this Court agrees that the discretionary
function exception is applicable to any claims regarding the
decision-making by USP-Lewisburg staff with respect to the use of
restraints against Peraza.
See Donaldson v. United States, 281
Fed. Appx. 75, 77 (3d Cir. 2008)(discretionary function exception
applies to prisoner’s claim against federal prison officials).
There have been no facts presented which could support a
claim that Plaintiff’s conduct at USP-Lewisburg did not warrant
intervention by prison staff on the relevant dates.
videotape evidence presented by the Defendant clearly shows Peraza
acting in a disruptive and destructive manner (slamming a stool
against the wall of his cell) prior to the imposition of four
point restraints on April 2, 2014.
The determinations as to
whether restraints, either ambulatory or four point, should be
employed against Peraza were clearly discretionary decisions.
such, the challenged decision-making by USP-Lewisburg staff falls
within the discretionary function exception.
of summary judgment in favor of the Defendant under the
discretionary function exception is warranted with regards to any
claims regarding the multiple decisions made by the USP-Lewisburg
staff to apply restraints against the Plaintiff.
Lack of Medical Expert
The next argument maintains that Plaintiff’s action cannot
proceed because he does not have medical expert testimony showing
that the application of restraints actually caused his injuries.
See Doc. 42, p. 38.
The Defendant correctly notes that Peraza has
previously asserted that no expert testimony is necessary to
pursue his claims.
Institutional medical records submitted by the Defendant
acknowledge that Plaintiff had bilateral swelling in his hands and
a one inch abrasion on his left wrist following the April 2, 2014
use of restraints.8
See Doc. 41-1, Exhibit B, Attachment A, pp.
Additionally those records show that Peraza suffered
intermittent blistering of his wrists following the June 3, 2014
As a result of the July 31, 2014 incident,
Plaintiff again suffered swelling of his hands, redness and wrist
abrasions which prison staff attributed to the prisoner refusing
to keep his restraints at his wrist. However, those same records
indicate that the injuries described above were caused by
Plaintiff’s intentional manipulation of his restraints which was
undertaken in direct contradiction to repeated warnings not to do
so by the USP-Lewisburg medical staff.
Defendant contends that the swelling occurred because
Peraza pushed the restraints up his arms for the purpose of
manipulating his situation into a claim for compensation.
A written evaluation by Doctor Andrew Ellinger of USPLewisburg provides that, although Plaintiff suffered nerve damage
to his wrist, those injuries are attributable to the inmate’s noncompliant manipulation of restraints.
See Doc. 50, ¶¶ 153-162.
As discussed above, 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. In order to
present a prima facie case of medical malpractice /negligence
under Pennsylvania state law, a plaintiff has the burden of
presenting expert testimony by an appropriate licensed
professional who can testify to a reasonable degree of medical
certainty that the actions or omissions of the defendant deviated
from acceptable medical standards, and that said deviation
constituted a substantial factor in causing the Plaintiff’s
Simpson v. Bureau of Prisons, 2005 WL 2387631 *5 (M.D.
Pa. Sept. 28, 2005)(Vanaskie, C.J.).9
Rule 1042.3 requires a person who brings a claim of
medical malpractice/negligence to file an appropriate certificate
of merit either with the complaint or within sixty (60) days
The only exception to this rule is where the matter “is
so simple and the lack of skill or want of care is so obvious as to
be within the range of ordinary experience and comprehension of
even nonprofessional persons.” Berman v. United States, 205 F.
Supp.2d 362, 264 (M.D. Pa. 2002) (citing Brannan v. Lankenau
Hospital, 490 Pa. 588 (1980). However, the instances when expert
opinions may be unnecessary are rare. See Simpson, 2005 WL *6;
Arrington v. Inch, 2006 WL 860961 *7 (M.D. Pa. March 30, 2006)
thereafter. The Rule 1042.3 certificate must certify that either:
(1) an appropriate licensed professional has supplied a written
statement that there exists a reasonable probability that the
conduct which is the subject of the complaint fell outside
acceptable professional standards and was a cause in bringing
about the harm; or (2) the claim of deviation by defendant from an
acceptable professional standard is based solely upon allegations
that other licensed professionals for whom defendant is
responsible deviated from an acceptable professional standard; or
(3) expert testimony of an appropriate licensed professional is
Courts within this circuit have recognized that Rule
1042.3 is substantive law and should be applied by federal courts
sitting in diversity.
Schwalm v. Allstate Boliler & Construction,
2005 WL 1322740 *1 (M.D. Pa. May 17, 2005)(Caputo, J.); Scaramuzza
v. Sciolla, 345 F. Supp.2d 508, 509-10 (E.D. Pa. 2004).
also been held that a Plaintiff pursuing an FTCA claim must comply
with Pennsylvania substantive law.
Arrington, 2006 WL 860961 at
In addition, Plaintiff’s incarceration or pro se status is
not a viable basis upon which to excuse compliance with Rule
1042.3 or the requirement of coming forth with expert medical
See Perez v. Griffin, 2008 WL 2383072 *3 (M.D. Pa.
June 9, 2008)(Rule 1042.3 applies to incarcerated and pro se
plaintiffs and constitutes a rule of substantive state law with
which plaintiffs in federal court must comply).
It is undisputed the Plaintiff suffered nerve damage and
While he contends that expert testimony is not
required, the issue of causation of Peraza’s injuries comes down
to a factual determination as to whether they were the result of
his own ill advised manipulation of the restraints or because they
were applied too tightly by prison officials.
In order to prove his case, Peraza must establish that the
USP-Lewisburg medical staff deviated from acceptable medical
standards when they made medical assessments that the restraints
were not applied too tightly and thereafter when they concluded
that Plaintiff’s injuries were caused by his own reckless
Plaintiff must also show that the deviation was the
proximate cause of his injuries.
Peraza has not identified any medical expert or submitted
a report from any medical expert.
Since Plaintiff has not
submitted a proper Rule 1042.3 certificate of merit or otherwise
indicated that he has retained an expert witness, it is
appropriate for this court to dismiss all of his pending FTCA
medical malpractice/negligence claims without prejudice.
Osorio v. United States, 2007 WL 2008498 *2 (W.D. Pa. July 5,
2007); see also Henderson v. Pollack, 2008 WL 282372 *4 (M.D. Pa.
Jan 31, 2008)(Caldwell, J.)(citing Hartman v. Low Security
Correctional Institution, Allenwood, 2005 WL 1259950 * 3 (M.D. Pa.
May 27, 2005)(Muir, J.).
As previously discussed, Plaintiff asserts that he was
choked during the April 2, 2014 application of ambulatory
Peraza also maintains that he was struck on the left
side of his face.
During the June 3, 2014 application of
ambulatory restrains Peraza claims that he was struck on the chin.
With respect to the July 31, 2014 application of ambulatory
restraints the Complaint again alleges that Plaintiff was choked
in an effort to keep him quiet.
Video footage of all three incidents has been submitted
by the Defendant.
The video evidence has been reviewed by this
Court in a light most favorable to the Plaintiff, See Tindell v.
Beard, 351 Fed. Appx. 591, 596 (3d Cir. 2009)(consideration of
video footage when considering summary judgment argument is
Based upon a review of the footage from April 2, 2014
there is no indication that Peraza was being choked.
inmate is heard talking throughout the entire episode.
cannot be determined that Peraza was punched or struck on the left
side of his face.
Video from June 3, 2014 also does not support
Plaintiff’s claim of being struck on the chin.
A careful review
of the incident additionally does not reveal that Peraza was
intentionally struck by any of the involved officers.
apparent from the footage that any touching of the Plaintiff’s
chin was at most brief and incidental.
There is simply no basis
for a claim that there was an intentional effort to inflict harm
to the Plaintiff by the involved USP-Lewisburg correctional
With respect to the July 31, 2014 application of
restraints, the submitted video does not depict any body movements
by the officers which could be deemed as choking the prisoner.
Moreover, Peraza is again heard talking throughout the episode
undermining any claim that he was being choked.
It is also noted
that the footage from all three dates shows medical assessments
being immediately preformed which concluded that there was no
evidence that Plaintiff was punched, choked, or struck.
In conclusion, the undisputed video evidence shows that
the defendant is entitled to entry of summary judgment with
respect to the allegations that Plaintiff was the victim of either
an assault or battery on those three dates.
Application of Restraints
The final summary judgment argument asserts that the
indisputable record and video show that Plaintiff’s restraints
were properly applied each time and any injury he suffered was
caused by his self admitted attempts to manipulate his restraints
in order to manufacture a lawsuit.
See Doc. 42, p. 32.
previously discussed, the Defendant has submitted video footage
relating to all three dates at issue which have been reviewed by
Review of the video footage shows that, during each
incident, Plaintiff made similar complaints that his restraints
were being applied too tightly and that he was the victim of a
Each time the restraints, either ambulatory
or four point, were applied there was an immediate assessment by a
member of the prison’s medical staff.
In addition the supervising
lieutenant also examined the restraints to make sure they were
While in restraints Peraza was provided with
regular periodic medical and non-medical evaluations as required
by BOP regulations.
Those evaluations were conducted by multiple
different correctional and medical staff members.
Also submitted for consideration is documentary evidence
in the form of institutional logs and memoranda showing that
Peraza made numerous verbal statements indicating that he was
going to manipulate his restraints in an effort to injure himself
so that he could initiate a lawsuit.
Based upon the wealth of undisputed evidence submitted by
the Defendant, especially the videotapes of the underlying
applications of restraints and Plaintiff’s institutional medical
records as well as the prison monitoring logs following each
restraint placement, it is clear that, even viewing the record in
a light most favorable to the pro se Plaintiff, there is
substantial evidence showing that the applications of restraints
underlying this matter were carried out in a reasonable and nonnegligent fashion.
In light of Plaintiff’s failure to come
forward with expert testimony and his repeated statements that he
was manipulating his restraints to cause injury so that he could
pursue litigation, entry of summary judgment is warranted.
appropriate Order will enter.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: MARCH 28, 2017
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