Moneyham v. United States
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 9/27/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(Magistrate Judge Saporito)
Before the court for disposition is Magistrate Judge Joseph M. Saporito’s
report and recommendation (hereinafter “R&R”) which proposes granting in part
and denying in part the defendant’s motion to dismiss or, in the alternative,
motion for summary judgment. (Doc. 31). Plaintiff Anthony Moneyham
(hereinafter “plaintiff”), a federal prisoner incarcerated at United States
Penitentiary Lewisburg, filed the instant lawsuit against the United States
alleging that he was assaulted and battered on multiple occasions by prison
officials, was subsequently placed in excessively tight restraints that caused
injury to his body, and did not receive appropriate medical attention. For the
following reasons, we will adopt Magistrate Judge Saporito’s R&R.
Plaintiff, a pro se inmate, initiated this action on June 17, 2016. (Doc. 1,
Compl.). In his complaint, plaintiff appears to assert six tort claims against the
United States for alleged misconduct by Bureau of Prisons (hereinafter “BOP”)
employees: (1) assault and battery by EMT Potter, Officer Anderson, Lt. Scott,
and Lt. Seeba that occurred on November 20, 2014 at plaintiff’s cell door when,
while plaintiff was having his blood drawn, these defendants grabbed his hand,
pulled his hand, and beat his arm with a baton; (2) denial of immediate medical
care for injuries plaintiff suffered during this incident, specifically “knots and cuts
over [his] forearm and blood running down;” (3) assault and battery by Officer
Arnold, Officer Missigman, and an unidentified officer that occurred two hours
after plaintiff was placed in restraints during which time plaintiff was punched and
kicked; (4) assault and battery by Lt. Seeba, Officer Sullivan, another unidentified
officer, and EMT Barth that occurred during a second restraint check two hours
later when Lt. Seeba punched plaintiff in the chest while an unidentified officer,
Officer Sullivan, and EMT Barth beat him on his back; (5) the application of
excessively tight restraints over a twenty-seven hour period, during which time
members of the medical staff failed to order correctional officers to loosen the
restraints despite plaintiff’s discomfort; and (6) the denial of medical care over a
thirteen day period, between November 20, 2014 and December 3, 2014, for
injuries plaintiff suffered as a result of excessively tight restraints. (Id.)1
We make no determination at this point as to the veracity of the complaint’s
On October 11, 2016, the defendant filed a motion to dismiss, or in the
alternative, a motion for summary judgment. (Doc. 22). Defendant argues that
plaintiff failed to establish his claims on the record. (Id. at 11). On November 14,
2017, plaintiff filed a brief in opposition to defendant’s motion. (Doc. 24).
Defendant replied on January 3, 2017. (Doc. 29).
Magistrate Judge Saporito reviewed the parties’ arguments and
recommends that the defendant’s motion be granted in part and denied in part.
(Doc. 31). Plaintiff filed timely objection to Magistrate Judge Saporito’s R&R. This
matter is now ripe for disposition. (Doc. 32).
In disposing of objections to a magistrate judge’s R&R, the district court
must make a de novo determination of those portions of the report against which
objections are made. 28 U.S.C. § 636(b)(1)(c); see also Sullivan v. Cuyler, 723
F.2d 1077, 1085 (3d Cir. 1983). The court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.
Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). The district court judge
may also receive further evidence or recommit the matter to the magistrate judge
with instructions. Id.
Absent objection to the report and recommendation, a district court should
still "afford some level of review to dispositive legal issues raised by the report."
Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987).The law describes this
level of review as "reasoned consideration." Id. Absent a clear error on the face
of the record or a manifest of injustice, we may adopt the recommendation by the
magistrate judge. FED. R. CIV. P. 72(b) 1983 Advisory Committee Notes; see also
28 U.S.C. § 636(b)(1); Sullivan, 723 F.2d at 1085.
At issue is the defendant’s motion to dismiss, or in the alternative, motion
for summary judgment. When a motion to dismiss is filed for failure to state a
claim upon which relief can be granted pursuant to Rule 16(b)(6) of the Federal
Rules of Civil Procedure, the sufficiency of the allegations in the complaint is
tested. Granting the motion is appropriate if, accepting as true all the facts
alleged in the complaint, the plaintiff has not pleaded “enough facts to state a
claim to relief that is plausible on its face,” or put another way, “nudged [his or
her] claims across the line from conceivable to plausible.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The Third Circuit interprets Twombly to
require the plaintiff to describe “enough facts to raise a reasonable expectation
that discovery will reveal evidence of” each necessary element of the claims
alleged in the complaint. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008) (quoting Twombly 550 U.S. at 556). Moreover, the plaintiff must allege
facts that “justify moving the case beyond the pleadings to the next stage of
litigation.” Id. at 234-35.
Defendant asks us to also consider its motion for summary judgment.
Granting summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” See Knabe v. Boury, 114 F.3d 407, 410
n.4 (3d Cir. 1997) (quoting FED. R. CIV. P. 56(c)). “[T]his standard provides that
the mere existence of some alleged factual dispute between the parties will not
defeat the otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine dispute of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine the
facts in the light most favorable to the party opposing the motion. Int’l Raw
Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The
burden is on the moving party to demonstrate that the evidence is such that a
reasonable fact finder could not return a verdict for the non-moving party.
Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the
outcome of the suit under the governing law. Id. Where the non-moving party will
bear the burden of proof at trial, the party moving for summary judgment may
meet its burden by showing that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the non-movant’s burden of
proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party
satisfies its burden, the burden shifts to the nonmoving party, who must go
beyond its pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories showing that there is a
genuine issue for trial. Id. at 324.
Magistrate Judge Saporito reviewed the record in its entirety and
recommends that plaintiff’s assault and battery claims arising out of the
intentional conduct of EMT Potter and EMT Barth as well as his negligence claim
concerning the denial of medical care over a thirteen-day period between
November 20, 2014 and December 3, 2014 be dismissed sua sponte for lack of
subject matter jurisdiction. (Doc. 31). Magistrate Judge Saporito further
recommends that the defendant’s motion to dismiss, or in the alternative, motion
for summary judgment be denied with respect to (1) plaintiff’s assault and battery
claims arising out of the intentional conduct of correctional officers Lt. Scott, Lt.
Seeba, Officer Anderson, Officer Arnold, Officer Missigman, Officer Sullivan, and
two unidentified officers on November 20, 2014, and (2) his unreasonable use of
force claim arising from the application of excessively tight restraints. (Id.)
Magistrate Judge Saporito recommends that defendant’s motion be granted with
respect to plaintiff’s claim for denial of immediate medical treatment.
In plaintiff’s response to Magistrate Judge Saporito’s R&R, entitled “Plaintiff
Objection to the Magistrate Judge Report and Recommendation,” plaintiff
contests two of Magistrate Judge Saporito’s findings: (1) plaintiff argues that he
never filed a claim for denial of medical treatment; and (2) plaintiff argues that he
never filed a claim against EMT Potter, and asserts that he “never claim[ed] that
EMT Potter assaulted the plaintiff[.]”(Doc. 32). Although it appears that plaintiff
agrees with the magistrate judge that some of his claims should be dismissed,
we review all of plaintiff’s claims in the order in which he asserts them in his
I. Assault and Battery
Plaintiff asserts three claims for assault and battery. First, plaintiff alleges
that EMT Potter, Officer Anderson, Lt. Scott, and Lt. Seeba assaulted him at his
cell door. Second, plaintiff alleges that Officer Arnold, Officer Missigman, and an
unidentified officer assaulted him after being placed in restraints, during a
standard two-hour restraint check. Third, plaintiff alleges that Lt. Seeba, Officer
Sullivan, another unidentified officer, and EMT Barth assaulted him during a
second two-hour restraint check.
Plaintiff has filed suit under the Federal Tort Claims Act (hereinafter
“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, which waives the government’s
sovereign immunity from tort suits, including those based on certain intentional
torts committed by federal law enforcement officers. § 2680(h). Section 2680(h)
creates this exception “with regard to acts or omissions of investigative or law
enforcement officers of the United States Government,” for any claim arising “out
of assault, battery, false imprisonment, false arrest, abuse of process, or
malicious prosecution.” This exception is known as the “law enforcement
proviso.” Millbrook v. United States, 569 U.S. 50, 53 (2013).
We agree with Magistrate Saporito that while this provision explicitly waives
sovereign immunity with respect to tort claims against the United States arising
out of assaultive conduct by law enforcement officers, it excludes such claims
arising out of the assaultive conduct of federal employees who are not
investigative law enforcement officers.2 Thus, intentional tort claims under the
FTCA arising out of the conduct of non-law enforcement officers such as EMT
The FTCA defines an “investigative or law enforcement officer” as “any officer
of the United States who is empowered by law to execute searches, to seize
evidence, or to make arrests for violations of Federal law.” 28 U.S.C. § 2680(h).
Potter and EMT Barth are barred by 28 U.S.C. § 2680(h). The assault and
battery claims against EMT Potter3 and EMT Barth will be dismissed sua sponte.4
We now analyze the assault and battery claims with respect to the
remaining defendants: Officer Anderson, Lt. Scott, Lt. Seeba, Officer Arnold,
Officer Missigman, two unidentified officers, and Officer Sullivan. It is well settled
that the extent of the United States’ liability under the FTCA is determined by
reference to state law. Molzof v. United States, 502 U.S. 301, 305 (1992); see
also 28 U.S.C. § 2674; Gould Elec. Inc. v. United States, 220 F.3d 169, 179 (3d
Cir. 2000). Pennsylvania law defines assault as “an intentional attempt by force
to do an injury to the person of another,” and a battery as “committed whenever
the violence menaced in an assault is actually done, though in ever so small a
degree, upon the person.” Renk v. City of Pittsburgh, 641 A.2d 289, 293
(Pa.1994); Cohen v. Lit Brothers, 70 A.2d 419, 421 (Pa. Super. Ct. 1950).
Defendant has asked us to review case law that recognizes the need for
correctional officers to be afforded some leniency with regard to incidental and
It should be noted that plaintiff appears to retract his claim against EMT Potter
in his objections to Magistrate Judge Saporito’s R&R, alleging that “nothing in
[his] complaint accuse[s] EMT Potter of any assaultive behavior.” (Doc. 32).
We will dismiss the claims against EMT Potter and EMT Barth for lack of
subject matter jurisdiction. See Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48
F.3d 742, 750 (3d Cir. 1995) (“Federal courts have an ever-present obligation to
satisfy themselves of their subject matter jurisdiction and to decide the issue sua
sponte . . .”).
necessary touching of inmates in the performance of their duties. (Doc. 22, at
12). While we agree that some contact with inmates is necessary to protect and
ensure the safety of all involved, the law also provides that the reasonableness of
the touching and the reasonableness of the force used in relation to their
employment duties is what determines whether particular conduct is considered
an assault and battery. Tejada v. Dale, No. 14-CV-5604, 2015 WL 5729273, at *6
(E.D. Pa. Sept. 30, 2015) (citing Picariello v. Fenton, 491 F. Supp. 1026, 1038
(M.D. Pa. 1980)).
Here, the defendant has proffered several testimonial declarations and
documentary exhibits to support its position that the amount of force used against
the plaintiff was reasonable and necessary under the circumstances. This
evidence suggests that during the first alleged assault at plaintiff’s cell door, it
was plaintiff, not Officer Anderson, Lt. Scott, or Lt. Seeba, who was the
aggressor. (Doc. 23-1, at 36).The evidence proffered also suggests that Officer
Anderson, Lt. Scott, and Lt. Seeba used reasonable force to regain control over
the plaintiff. (Id.) The declarations and documentary exhibits suggest that the
alleged second and third assaults which took place during plaintiff’s restraint
checks did not occur. (Id. at 37-38). Rather, the evidence proffered by the
defendant suggests that, aside from the plaintiff being noticeably agitated, these
checks were uneventful. (Id.)
Plaintiff submitted his own evidence in the form of a sworn declaration to
contradict the evidence proffered by the United States. (Doc. 24-2). Affidavits are
an admissible form of evidence used to support factual positions during summary
judgment. FED.R.CIV.P. 56(c). The Third Circuit has consistently said that a pro
se inmate, like the plaintiff in this case, “is in a decidedly difficult position from
which to generate record evidence” and that affidavits “are about the best that
can be expected” at the summary judgment stage. Brooks v. Kyler, 204 F.3d 102,
108 n. 7 (3d Cir. 2000) (quoting Norman v. Taylor, 25 F.3d 1259, 1265 (4th
Cir.1994) (Hall, J., dissenting) (internal punctuation omitted)); see also Smith v.
Mensinger, 293 F.3d 641, 649 n. 4 (3d Cir. 2002).
We find that a genuine dispute of material facts exists concerning plaintiff’s
claims for assault and battery, and that a reasonable fact finder could disagree
on the events that took place. Thus, summary judgment is not appropriate at this
stage for the assault and battery claims against Officer Anderson, Lt. Scott, Lt.
Seeba, Officer Arnold, Officer Missigman, two unidentified officers, and Officer
II. Use of Force
In addition to plaintiff’s claims for assault and battery against the
abovementioned individuals, plaintiff claims that unidentified correctional officers
used excessive force when they placed him in restraints for a period of twenty11
seven hours. Plaintiff further alleges that medical personnel who were present at
the scene failed to direct the correctional officers to loosen the restraints.
We use the same reasoning that we applied in analyzing the assault and
battery claims when analyzing defendant’s motion with respect to this claim.
Similar to the analysis of whether contact constitutes assault and battery, the
placement of restraints on an inmate is privileged if that conduct was reasonably
necessary under the circumstances. Pircariello v. Fenton, 491 F. Supp. 1026,
1038 (M.D. Pa. 1980).
Again, the defendant proffered several testimonial declarations and
documentary exhibits to support its position that the amount of forced used
against the plaintiff was reasonable and necessary under the circumstances.
This evidence suggests that because plaintiff was agitated and uncooperative,
officers concluded that plaintiff should remain in restraints. (See Doc. 23-1, at
42). The evidence does not suggest that the restraints were excessively tight.
Plaintiff’s sworn affidavit, however, contradicts the evidence proffered by the
Because a genuine dispute of material facts exists concerning plaintiff’s
claim for use of force, we believe that a reasonable fact finder could disagree on
the events that took place. We will deny defendant’s motion with regard to this
III. Denial of Immediate Medical Care
Plaintiff has asserted a negligence claim against the United States alleging
that he was denied immediate medical treatment after the original incident at his
cell door on November 20, 2014. He claims that he “had knots and cuts over [his]
forearm and blood running down.” (Doc. 1). Plaintiff claims that instead of
receiving medical attention for these wounds, he was placed in ambulatory
Defendant has proffered testimonial declarations and documentary
evidence demonstrating that, immediately following the cell extraction and
placement in ambulatory restraints, plaintiff was medically assessed by EMT
Barth. (Doc. 23-1,86-87, 89, 130). Other than some redness to the right forearm,
no trauma or injuries were noted. (Id. at 87, 130). Plaintiff contradicts this
evidence in his sword declaration. (Doc. 24-2, at 2).
While there appears to be a genuine dispute of material facts, this claim is
different from the previous claims in a critical way. Unlike the assault and battery
issues and the use of force issue, in this instance defendant presents video
evidence of the incident from a handheld video recorder.
Magistrate Judge Saporito reviewed this video evidence and found that the
footage clearly depicted plaintiff’s arms immediately after the original incident at
his cell door. (Doc. 31, at 25-26).The magistrate judge noted that there was no
sign of cuts on plaintiff’s arm, nor was there blood running down. Plaintiff did not
object to Magistrate Judge Saporito’s findings on this point.5 After reviewing the
R&R on this point with reasoned consideration, we find no clear error by the
magistrate judge or a manifest of injustice.
Although a court must generally take all facts in the light most favorable to
the non-moving party when disposing of a summary judgment motion, there is an
exception to this rule where the nonmovant’s version of the events are “blatantly
contradicted” by the summary judgment record. Scott v. Harris, 550 U.S. 372,
380 (2007). Video footage has been found to establish this exception when the
footage is clear and not susceptible to multiple reasonable interpretations.
Blaylock v. City of Philadelphia, 504 F.3d 405, 414 (3d Cir. 2007).
We reviewed the video evidence submitted by the government and agree
with Magistrate Judge Saporito that the footage depicts plaintiff’s arms rather
clearly. The video shows plaintiff being disrobed by the use of force team and
then re-dressed in paper clothing. At no point does plaintiff show any sign of
bleeding nor is there evidence of contusions on his arms. Additionally, the video
depicts a paramedic conducting a full body assessment once plaintiff is in
ambulatory restraints. The paramedic examines plaintiff’s arms and also does not
find any evidence of blood, cuts, or contusions. Because plaintiff’s version of
Plaintiff asserts in his objection that his original complaint “never was filed for
denial of medical treatment.” (Doc. 32).
events blatantly contradicts the summary judgment record, we will grant
summary judgment to the defendants with respect to this claim.
IV. Denial of Medical care from November 20, 2014 – December 3, 2014
Finally, plaintiff alleges that the defendants denied him medical treatment
over a period of thirteen days for the injuries he claims to have suffered as a
result of being subjected to excessively tight restraints for that twenty-seven hour
period starting on November 20, 2014. This claim, however, was never
addressed with the prison administration prior to the plaintiff filing suit.
A plaintiff cannot institute an FTCA suit until he or she presents the claim to
a federal agency and receives a final decision on the claim. 28 U.S.C. § 2675(a);
see McNeil v. United States, 508 U.S. 106, 112 (1993). If the agency does not
act within six months, the failure to issue a decision may be treated as a final
decision by the claimant. Id. The FTCA exhaustion requirement "is jurisdictional
and cannot be waived." Rosario v. American Export-Isbrandtsen Lines, Inc., 531
F.2d 1227, 1231 (3d Cir. 1976). A claimant’s failure to present his FTCA claim to
the appropriate agency “compels the conclusion that a district court lacks subject
matter jurisdiction over the claim.” White-Squire v. U.S. Postal Service, 592 F.3d
453, 458 (3d Cir. 2010).
Magistrate Judge Saporito found that plaintiff failed to exhaust his
administrative remedies with respect to this claim prior to filing suit. (Doc. 31, at
16). Plaintiff does not contest this finding in his objection, nor does he present the
court with any evidence of exhaustion. (Doc. 32). Thus, we agree with Magistrate
Judge Saporito that because plaintiff failed to exhaust his administrative
remedies, we do not have subject matter jurisdiction over this claim.
Accordingly, we will dismiss plaintiff’s FTCA claim concerning the denial of
medical care over a thirteen-day period between November 20, 2014 and
December 3, 2014.
For the foregoing reasons, we will overrule plaintiff’s objection and adopt
Magistrate Judge Saporito’s R&R. Plaintiff’s assault and battery claims arising
from the intentional conduct of EMT Potter and EMT Barth as well as plaintiff’s
negligence claim concerning the denial of medical care between November 20,
2014 and December 3, 2014 will be dismissed sua sponte for lack of subject
matter jurisdiction. Defendant’s motion for summary judgment will be granted
with respect to plaintiff’s negligence claim concerning the denial of immediate
medical care for injuries suffered during the incident at his cell door on November
20, 2014. Defendant’s motion for summary judgment will be denied with respect
to plaintiff’s assault and battery claims arising from the intentional conduct of
correctional officers Lt. Scott, Lt. Seeba, Officer Anderson, Officer Arnold, Officer
Missigman, Officer Sullivan, and two unidentified officers on November 20, 2014
and his use of force claim arising from the application of excessively tight
restraints. Magistrate Judge Saporito recommends that the case be set for trial.
We find that trial is premature at this point. The R&R deals with a motion to
dismiss, or in the alternative, a motion for summary judgment. The defendants
filed this motion very early in the case, possibly before any discovery was
exchanged between the parties. Accordingly, we will remand this case back to
the magistrate judge to provide the parties an opportunity to engage in discovery
after which the parties should be granted the opportunity to file any additional
dispositive motions if they are fitting. An appropriate order follows.
Date: September 27, 2017
s/_James M. Munley______
JUDGE JAMES M. MUNLEY
United States District Court
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