Regassa v. Brininger et al

Filing 43

MEMORANDUM (Order to follow as separate docket entry) re Defendants' motion for summary judgment 24 . Signed by Honorable Matthew W. Brann on 9/4/15. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ADMASSU REGASSA,
Plaintiff
v.
C. BRININGER, ET AL.,
Defendants

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CIVIL NO. 4:CV-14-1122
(Judge Brann)

MEMORANDUM
September 4, 2015
Background
Admassu Regassa , an inmate presently confined at the Allenwood Federal
Correctional Complex, White Deer, Pennsylvania filed his pro se combined
Bivens1/Federal Tort Claims Act (FTCA) action regrading his prior confinement
at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg).
Named as Defendants are the United States of America and the following

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). Bivens stands for the proposition that "a citizen suffering a
compensable injury to a constitutionally protected interest could invoke the general
federal question jurisdiction of the district court to obtain an award of monetary
damages against the responsible federal official." Butz v. Economou, 438 U.S. 478,
504 (1978).
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twenty-eight (28) USP Lewisburg officials: Warden J.E. Thomas; Associate
Warden A.W. Wilson; Captain F. Entzel; Correctional Officers C. Brininger, S.
Argueta, A. Kranzel, J. Oldt, M. Erb, E. Kulp; N. Beaver, C. Wise, S. Buebendorf,
J. Eck, Chucky Anderson, M. Hackenberg, and D. Johnson; Nurse Gregory
George; Lieutenants Sherman, Saylor, A. Miller, Seeba, Carrasquilo, and Dowkus;
Physician’s Assistant (PA) Francis Fasciana; Doctor Kevin Pigos; Counselor M.
Edinger; Disciplinary Hearing Officers (DHO) A. Jordan and B. Chambers.
Plaintiff states that prior to a July 8, 2013 hearing before DHO Jordan he
was threatened with physical harm by Counselor Edinger, Brinninger, Kranzel, and
Kulp. See Doc. 1, ¶ 6. Following conclusion of the hearing, Regassa claims that
he was physically assaulted by Correctional Officers Brininger, Kranzel and Kulp
and other unidentified officers in a second floor hallway near the shower area.
Brininger allegedly flung Regassa to the floor and said Defendant along with
Krenzel and Kulp as well as other officers repeatedly kicked and stomped the
inmate for approximately three minutes. Plaintiff asserts that he suffered multiple
injuries and was also subjected to racially and sexually inflammatory verbal abuse.
See id. at ¶ 7. The Complaint indicates that Defendants Buebendorf and Wise
were present at the DHO hearing and also during the assault but failed to intervene
on Plaintiff’s behalf.
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The Complaint next asserts that the officers involved in the assault
attempted to cover up their actions by falsely calling in a report and a request for
assistance claiming that Plaintiff had spat upon and assaulted Edinger. Lieutenant
Sherman and his “shakedown crew” which included Defendant Argueta and other
correctional staff responded to the call. Id. at ¶ 8. The Complaint contends that
Argueta used excessive force by placing the Plaintiff in overly tight ambulatory
restraints.
Regassa contends that he remained in ambulatory restraints for
approximately three (3) days and was issued a falsified misconduct charge for
assaulting Brinninger. During that period, Plaintiff states that due to the tightness
of the restraints, he was unable to eat, drink, or take care of his personal hygiene
needs and was kept in a bug infested cell. It is also alleged that Regassa made
numerous requests to have his restraints loosened which were ignored.
In addition, PA Fasciana and Doctor Pigos purportedly ailed to provide Plaintiff
with needed treatment for his injuries resulting from the July 8, 2013 attack.
Regassa elaborates that his requests for x-rays therapy, pain medication and a
complete evaluation were denied. See id. at ¶ 10.
According to Plaintiff he was subjected to additional unwarranted excessive
force on the following occasions: (1) June 26, 2013 by Defendant Beaver
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(slapped in the face) ; (2) June 26, 2013 by Defendant Johnson (severely twisted
his arm) ; (3) December 23, 2013 by Defendant Eck (slapped in the face twice);
(4) November 8, 2012 by Defendant Hackenberg (slammed into shower handle and
punched) ; and (5) October 17, 2012 (violently shaken several times ) and
November 8, 2012 (head slammed into wall) by Defendant Anderson.
Furthermore, DHO Chambers was allegedly biased and failed to consider
Regassa’s testimony when finding him guilty of assault with respect to the July 8,
2013 incident. See id. at ¶ 13. Plaintiff adds that the above detailed violations of
his constitutional rights were the result of a conspiracy. Finally, Regassa maintains
that he was subjected to verbal harassment and racial slurs and that Defendants
United States, Wilson, Thomas, and Entzel failed to protect his safety. See id. at ¶
14.
Defendants have responded to the Complaint by filing a motion to dismiss
and/or in the alternative for summary judgment. See Doc. 24. They seek relief on
the grounds that: (1) Plaintiff failed to exhaust his administrative remedies with
respect to his civil rights claims; (2) Plaintiff’s Bivens claims for monetary
damages against Defendants in their official capacities are barred by the Eleventh
Amendment; (3) the civil rights allegations against Defendants Beaver, Johnson,
Anderson, Hackenberg and Eck and the failure of the Complaint to identify his
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FTCA claims violates Federal Rule of Civil Procedure 20; (4) the claims against
Warden Thomas, Associate Warden Wilson, and Captain Entzel are improperly
premised on a theory of respondeat superior; (5) a viable claim of conspiracy is not
raised in the Complaint; (6) the United States is not liable for punitive damages,
injunctive relief or alleged property loss under the FTCA. The opposed motion is
now ripe for consideration.
Discussion
Motion to Dismiss
Defendants’ 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
Defendants' motion. Thus, their motion will be treated as solely seeking summary
judgment. See Latham v. United States, 306 Fed. Appx. 716, 718 (3d Cir.
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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.”)
Summary Judgment
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). 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 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
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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. See Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). 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)).
Eleventh Amendment
Defendants’ initial argument contends that Plaintiff’s action to the extent
that it raises Bivens claims for monetary damages against them in their official
capacities is barred by the Eleventh Amendment. See Doc. 33, p. 11.
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
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“immunity is jurisdictional in nature,” FDIC v. Meyer, 510 U.S. 471, 475 (1994),
and extends to government agencies and employees sued in their official
capacities. 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, C.J.). Therefore, entry of summary judgment
in favor of the Defendants is appropriate to the extent that the Complaint asserts
Bivens claims against them in their official capacities.
Personal Involvement
Defendants next assert that the Complaint fails to allege personal
involvement by Warden Thomas, Associate Warden Wilson, and Captain Entzel in
the alleged constitutional violations. See Doc. 33, p. 18. Consequently, they
conclude that those three Defendants are entitled to entry of summary judgment
since the allegations against them are solely premised upon their respective
supervisory capacities.
A plaintiff, in order to state an actionable civil rights claim, must plead two
essential elements: (1) that the conduct complained of was committed by a person
acting under color of law, and (2) that said conduct deprived the plaintiff of a right,
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privilege, or immunity secured by the Constitution or laws of the United States.
Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw by
Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990).
Civil rights claims brought cannot be premised on a theory of respondeat
superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each
named defendant must be shown, via the complaint's allegations, to have been
personally involved in the events or occurrences which underlie a claim. As
explained in Rode:
A defendant in a civil rights action must have personal
involvement in the alleged wrongs. . . . [P]ersonal involvement
can be shown through allegations of personal direction or of
actual knowledge and acquiescence. Allegations of
participation or actual knowledge and acquiescence, however,
must be made with appropriate particularity.
Rode, 845 F.2d at 1207.
Defendants Thomas, Wilson and Entzel are each clearly employed in
supervisory capacities within the prison. There is no assertion that any of those
officials participated in the alleged use of excessive force and placement in
restraints underlying this action. Likewise, the Complaint is devoid of facts
showing that any of those three Defendants directed, approved, or otherwise
condoned the use of any constitutional misconduct directed towards Regassa. As

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such, the Rode personal involvement requirement has not been satisfied with
respect to Warden Thomas, Associate Warden Wilson, and Captain Entzel.
It is also possible that Plaintiff may be attempting to establish liability
against Thomas, Wilson, and Entzel due to their responses or non-response to his
administrative grievances or complaints. Prisoners have no constitutionally
protected right to a grievance procedure. See Jones v. North Carolina Prisoners’
Labor Union, Inc., 433 U.S. 119, 137-38 (1977)(Burger, C.J., concurring) (“I do
not suggest that the [grievance] procedures are constitutionally mandated.”);
Speight v. Sims, 283 Fed. Appx. 880, 881 (3d. Cir. 2008)(citing Massey v.
Helman, 259 F.3d 641, 647 (7th Cir. 2001)(“[T]he existence of a prison grievance
procedure confers no liberty interest on a prisoner.”)
While prisoners do have a constitutional right to seek redress of their
grievances from the government, that right is the right of access to the courts which
is not compromised by the failure of prison officials to address an inmate’s
grievance. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (federal grievance
regulations providing for administrative remedy procedure do not create liberty
interest in access to that procedure). Pursuant to those decisions, any attempt by
Plaintiff to establish liability against Warden Thomas, Associate Warden Wilson,
and Captain Entzel based upon their handling of his administrative grievances or
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complaints does not support a constitutional claim. See also Alexander v.
Gennarini, 144 Fed. Appx. 924, 925 (3d Cir. 2005)(involvement in post-incident
grievance process not a basis for § 1983 liability); Pryor-El v. Kelly, 892 F. Supp.
261, 275 (D. D.C. 1995) (because prison grievance procedure does not confer any
substantive constitutional rights upon prison inmates, the prison officials' failure to
comply with grievance procedure is not actionable).
Pursuant to the above discussion the request for entry of summary judgment
on the basis of lack of personal involvement will be granted in favor of Warden
Thomas, Associate Warden Wilson, and Captain Entzel with respect to any Bivens
claims asserted against those officials.
Conspiracy
Defendants further maintain that the Complaint does not set forth a viable
conspiracy claim. See Doc. 33, p. 15.
In order to set forth a cognizable conspiracy claim, a plaintiff cannot rely on
broad or conclusory allegations. D.R. by L.R. v. Middle Bucks Area Vocational
Technical Sch., 972 F.2d 1364, 1377 (3d Cir. 1992), cert. denied, 506 U.S. 1079
(1993); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989); Durre v. Dempsey, 869
F.2d 543, 545 (10th Cir. 1989). The United States Court of Appeals for the Third
Circuit has further noted that "[a] conspiracy claim must . . . contain supportive
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factual allegations." Rose, 871 F.2d at 366. Moreover, "[t]o plead conspiracy
adequately, a plaintiff must set forth allegations that address the period of the
conspiracy, the object of the conspiracy, and the certain actions of the alleged
conspirators taken to achieve that purpose." Shearin v. E.F. Hutton Group, Inc.,
885 F.2d 1162, 1166 (3d Cir. 1989).
The essence of a conspiracy is an agreement or concerted action between
individuals. See D.R. by L.R., 972 F.2d at 1377; Durre, 869 F.2d at 545.
Consequently, a plaintiff must allege with particularity and present material facts
which show that the purported conspirators reached some understanding or
agreement or plotted, planned and conspired together to deprive plaintiff of a
protected federal right. Id.; Rose, 871 F.2d at 366; Young v. Kann, 926 F.2d 1396,
1405 n. 16 (3d Cir. 1991); Chicarelli v. Plymouth Garden Apartments, 551 F.
Supp. 532, 539 (E.D. Pa. 1982). Where a civil rights conspiracy is alleged, there
must be some specific facts in the complaint which tend to show a meeting of the
minds and some type of concerted activity. Deck v. Leftridge, 771 F.2d 1168,
1170 (8th Cir. 1985). A plaintiff cannot rely on subjective suspicions and
unsupported speculation. Young, 926 F.2d at 1405 n.16
There are no averments of fact in the Complaint that reasonably suggest the
presence of an agreement or concerted activity between the Defendants. Regassa
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has simply not alleged any facts showing any communication or cooperation
among any Defendants from which an agreement could be inferred. While
Plaintiff has set forth some arguable claims of constitutional misconduct, he has
not adequately alleged that those actions were the result of a conspiracy. Summary
judgment will be granted with respect to the claim of conspiracy.
Improper Joinder
Defendants next contend that the Bivens claims against Beaver, Johnson,
Anderson, Hackenberg, and Eck are improperly joined in this matter. See Doc.
33, p. 13. They additionally argue that the Complaint fails to specify which claims
are being pursued under the FTCA.
Pro se parties are accorded substantial deference and liberality in federal
court. Haines v. Kerner, 404 U.S. 519, 520 (1972). They are not, however, free to
ignore the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 8
requires that a complaint contain a short and plain statement setting forth (1) the
grounds upon which the court's jurisdiction rests, (2) the claim showing that the
pleader is entitled to relief, and (3) a demand for judgment for the relief sought by
the pleader.
Federal Rule of Civil Procedure 20 (a)(2) provides in relevant part that
individuals may be joined in on action as defendants “if:
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(A)

any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and

(B)

any question of law common to all defendants will arise in the action.”

The majority of the Complaint centers around events which occurred
between July 8-10, 2013. However, as correctly noted by the Defendants the
Complaint also include the following unrelated excessive force claims: (1) June
26, 2013 by Defendant Beaver (slapped in the face) ; (2) June 26, 2013 by
Defendant Johnson (severely twisted his arm) ; (3) December 23, 2013 by
Defendant Eck (slapped in the face twice); (4) November 8, 2012 by Defendant
Hackenberg (slammed into shower handle and punched) ; and (5) October 17,
2012 (violently shaken several times ) and November 8, 2012 (head slammed into
wall) by Defendant Anderson.
The Third Circuit has recognized that a complaint that “avers multiple
constitutional violations over a span of seven years” arising out of different
transactions and occurrences which in many instances fails to specify the defendant
who committed the alleged constitutional violation does not comply with Rules 8
and 20. Pruden v. SCI Camp Hill, 252 Fed. Appx. 436, 438 (3d Cir. 2007). The
Third Circuit added that under such circumstances the appropriate remedy was to
afford the plaintiff an opportunity to file a proper amended complaint.
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It has been similarly recognized that when a complaint “collects a series of
distinct claims, involving diverse parties, and disparate acts which are alleged to
have occurred at different times” the “joinder of such claims in a single lawsuit is
inappropriate” under Rule 20 and the plaintiff should be afforded leave to file an
amended complaint. Hull v. Unknown and Known Members of U.S. Government,
Civil No. 1:12-CV-203, 2012 WL 5508494 *8 (M.D. Pa. Oct. 3, 2012).
Clearly, the alleged use of excessive force on July 8, 2013, the misconduct
charge and disciplinary proceedings stemming from that incident, as well as the
imposition of ambulatory restraints, denial of medical care, and imposition of
disciplinary confinement following said event are all directly related and properly
raised in a single complaint.
However, although Plaintiff must be afforded liberal treatment as a pro se
litigant, the inclusion of multiple alleged instances of excessive force which both
predate and postdate the July 8-10, 2013 events does not comply with Rule 20.
Based upon an application of Pruden and Hull to those additional excessive force
claims which clearly do not stem from the same underlying incident, this Court
agrees that the joinder of said unrelated allegations in a single Complaint violates
Rule 20.
Defendants also note that it is unclear from the Complaint as to which claims
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are being pursued under the FTCA. See Doc. 33, p. 3. The FTCA provides a
remedy in damages for the simple negligence of employees of the United States
See United States v. Muniz, 374 U.S. 150, 152 (1963).
Under the FTCA, sovereign immunity is waived against persons suing the
federal government for the commission of various torts.2 See Simon v. United
States, 341 F. 3d 193, 200 (3d Cir. 2003). An action filed pursuant to the FTCA
must first be submitted in writing to the appropriate federal agency as an
administrative tort claim. See 28 U.S.C. § 2675. The statute of limitations for
submitting an administrative tort claim to the agency is two (2) years. See id. at §
2401(b). The deadline for seeking judicial review is six (6) months after the
agency’s final denial of the administrative tort claim. See Pascale v. United States,
998 F. 2d 186, 191 (3d Cir. 1993). This statute of limitations begins to run from

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. Mahler v. United States,
196 F. Supp. 362, 364 (W.D. Pa. 1961). 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. 1988). Thus, this
Court also agrees with Defendants’ pending argument that punitive damages and
injunctive relief cannot be requested under the FTCA.
2

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the mailing date of the denial.3 Tuttle v. United States Postal Service, 585 F. Supp.
55, 56 (M.D. Pa. 1983), aff’d, 735 F. 2d 1351 (3d Cir. 1984).
This Court agrees that based upon a review of the Complaint it is unclear as
to the FTCA claims which Plaintiff wishes to proceed with before this Court.
Pursuant to the above discussion as well as the concerns expressed below, Regassa
will be afforded opportunity to submit a curative amended complaint.
Administrative Exhaustion
Defendants further contend that although Plaintiff administratively
exhausted his pending due process claim against DHO Chambers, “he failed to
submit timely administrative remedies concerning any of his [other] civil rights
claims.” Doc. 33, p. 8. Section 1997e(a) of Title 42 U.S.C. provides:
No action shall be brought with respect to prison
conditions under Section 1979 of the Revised Statutes of
the United States (42 U.S.C. 1983), or any other federal
law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.

A court may not extend the six month time period. See United States v.
Kubrick, 444 U.S. 111, 117-18 (1979). The time limitations contained in the FTCA
are jurisdictional in nature. Willis v. United States, 879 F. Supp 889, 892 (C.D. Ill.
1994). Thus, a plaintiff’s failure to sue within the period of limitations recognized by
§ 2401 deprives a court of subject matter jurisdiction. Ahmed v. United States, 30
F.3d 514, 516 (4th Cir. 1994).
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Section 1997e(a) requires administrative exhaustion “irrespective of the
forms of relief sought and offered through administrative avenues.” Porter v.
Nussle, 122 S.Ct. 983, 992 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6
(2001). Claims for monetary relief are not excused from the exhaustion
requirement. Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000). Dismissal of an
inmate’s claim is appropriate when a prisoner has failed to exhaust his available
administrative remedies before bringing a civil rights action. Ahmed v.
Sromovski, 103 F. Supp. 2d 838, 843 (E.D. Pa. 2000). “[E]xhaustion must occur
prior to filing suit, not while the suit is pending.” Tribe v. Harvey, 248 F.3d 1152,
2000 WL 167468, *2 (6th Cir. 2000)(citing Freeman v. Francis, 196 F.3d 641, 645
(6th Cir. 1999)); Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d Cir. 2006).
The United States Supreme Court in Jones v. Bock, 549 U.S. 199, 219
(2007), stated that the primary purpose of the exhaustion requirement is to allow “a
prison to address complaints about the program it administers before being
subjected to suit, reducing litigation to the extent complaints are satisfactorily
resolved, and improving litigation that does occur by leading to the preparation of
a useful record.” Id. The administrative exhaustion mandate also implies a
procedural default component. Spruill v. Gillis 372 F.3d 218, 222 (3d Cir. 2004).
As explained by the Third Circuit, a procedural default rule “prevents an
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end-run around the exhaustion requirement.” Id. at 230. It also ensures “prisoner
compliance with the specific requirements of the grievance system” and
encourages inmates to pursue their administrative grievances “to the fullest.” Id.
Similarly, the Supreme Court has observed that proper exhaustion of available
administrative remedies is mandatory, meaning that prisoners must comply with
the grievance system’s procedural rules, including time limitations. Woodford v.
Ngo, 548 U.S. 81, 82 (2006).
The BOP has a well established three (3) step Administrative Remedy
Program whereby a federal prisoner may seek review of any aspect of his
imprisonment. See 28 C.F.R. §§ 542.10-542.19. After attempting to informally
resolve the issue, a BOP inmate can initiate the first step of the grievance process
by submitting “a formal written Administrative Remedy Request, on the
appropriate form (BP-9),” within twenty (20) calendar days “following the date on
which the basis for the Request occurred.” See 28 C.F.R. § 542.14(a). The
Warden has twenty (20) calendar days from the date the Request or Appeal is filed
in which to respond.” See 28 C.F.R. § 542.18.
If not satisfied with the Warden's response, an inmate may appeal (step two)
on the appropriate form (BP-10) to the Regional Director within twenty (20)
calendar days of the date the Warden signed the response. See 28 C.F.R. §
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542.15. Finally, if the inmate is dissatisfied with the Regional Director's response,
that decision may then be appealed (step three) on the appropriate form (BP-11) to
the General Counsel within thirty (30) calendar days from the date the Regional
Director signed the response. Id. Additionally, “[i]f the inmate does not receive a
response within the time allotted for reply, including extension, the inmate may
consider the absence of a response to be a denial at that level.” Id.
According to an undisputed declaration under penalty of perjury by BOP
Attorney Advisor Michael Romano, who avers that based upon his search of the
BOP’s computerized administrative remedy index, Plaintiff has filed thirty (30)
BOP grievances, seven (7) of which were administratively exhausted. . Doc. 32-2,
Exhibit 1, ¶ 5. Among those seven exhausted filings was an appeal of the incident
report Regasssa received on July 8, 2013 which resulted in a hearing being held
before DHO Chambers. Romano adds that Plaintiff has filed five administrative
tort claims including one relating to excessive use of force by prison staff on July
8, 2013. See id. at ¶ 16.
As noted above, this Court agrees that it is unclear was to which claims are
presently being pursued under the FTCA. Due to that deficiency, a determination
as to whether summary judgment should be granted on the basis of non-exhaustion
is not possible at this juncture as it is unclear as to which allegations seek relief
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under Bivens. As addressed earlier, Regassa will be afforded opportunity to file
an amended complaint which should only include properly identified Bivens and
FTCA claims stemming from the surviving factual allegations set forth in the
Original Complaint.
Conclusion
Based upon the above discussion, the Defendants’ dispositive motion will be
construed as solely seeking entry of summary judgment and granted in part. Entry
of summary judgment will be granted in favor of the Defendants to the extent that
the Complaint asserts Bivens claims against them in their official capacities.
Second, entry of summary judgment on the basis of lack of personal involvement
will be granted in favor of Warden Thomas, Associate Warden Wilson, and
Captain Entzel with respect to any Bivens claims asserted against those officials.
Third, summary judgment will be granted with respect to the claim of
conspiracy. Fourth, the following unrelated excessive force claims: (1) June 26,
2013 by Defendant Beaver (slapped in the face) ; (2) June 26, 2013 by Defendant
Johnson (severely twisted his arm) ; (3) December 23, 2013 by Defendant Eck
(slapped in the face twice); (4) November 8, 2012 by Defendant Hackenberg
(slammed into shower handle and punched) ; and (5) October 17, 2012 (violently
shaken several times ) and November 8, 2012 (head slammed into wall) by
21

Defendant Anderson are in violation of Federal Rule of Civil Procedure 20 and not
properly joined with the claims relating to the purported events of July, 2013 .
Since the failure of Plaintiff to sufficiently identify his FTCA claims
prevents disposition of the Defendants’ failure to exhaust argument, Regassa will
be afforded opportunity to file an amended complaint of no more then twenty-five
(25) pages in length regarding his surviving allegations which states each claim he
wishes to pursue in a clear and concise manner; clearly states which claims are
being pursued under the FTCA; identifies all remaining defendant[s], and specifies
the relief he is seeking. See Salahuddin v. Cuomo, 861 F.2d 40 (2d Cir. 1988).
The amended complaint must satisfy the concerns set forth herein and only name
defendants and set forth claims which have not otherwise been disposed of by this
Memorandum Opinion and arise out of the same occurrence or series of
occurrences, i.e. are directly related to the July 8, 2013 incident.
Plaintiff is again respectfully advised that in order to state a viable civil
rights claim he must make a showing that the conduct complained of was
committed by a person acting under color of law and that said conduct deprived
him of a right, privilege, or immunity secured by the Constitution or by a statute of
the United States. Cohen v. City of Philadelphia, 736 F.2d 81, 83, (3d Cir. 1984).
A prerequisite for a viable civil rights claim is that a defendant directed, or knew of
22

and acquiesced in, the deprivation of his constitutional rights. Monell v.
Department of Social Serv. of the City of N.Y., 436 U.S. 658, 694-95 (1978); Gay
v. Petsock, 917 F.2d 768, 771 (3d Cir. 1990); Capone v. Marinelli, 868 F.2d 102,
106 n.7 (3d Cir. 1989). This is the personal involvement requirement. Civil rights
liability may not be imposed on the principle of respondeat superior. Id. at 106
(citing Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir.
1976)).
Plaintiff is also reminded that in order to state a viable FTCA claim he must
allege: (1) that a duty was owed to him by a defendant; (2) there was a negligent
breach of said duty; and (3) that the negligent breach was the proximate cause of
the plaintiff's injury/loss. Regassa must also show that the claim was
administratively exhausted and filed in a timely manner.
Regassa is forewarned that his amended complaint must be complete in all
respects. It must be a new pleading which stands by itself without reference to the
complaint previously filed. The amended complaint should set forth Plaintiff's
claims in short, concise and legible statements and be limited to facts and surviving
claims which are common to all remaining Defendants and which have not been
disposed of by this Memorandum. It should specify which actions are alleged as to
which Defendants.
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Failure of the Plaintiff to timely submit an amended complaint or otherwise
respond to this Order will result in dismissal of his action for failure to prosecute.
An appropriate Order will enter.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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