Carvalho v. Bledsoe

DORAN CHRISTIAN CARVALHO, Plaintiff

v.WARDEN BRYAN BLEDSOE, ET AL., Defendants

CIVIL NO. 3:CV-11-1995

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Date: September 26, 2012

(Judge Conaboy)

MEMORANDUM

Background

Doran Christian Carvalho (Plaintiff), an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg) initiated this civil action. Plaintiff is represented by counsel. Named as Defendants in the fourteen (14) count Complaint are the Federal Bureau of Prisons (BOP), USP-Lewisburg Warden Bryan Bledsoe, and three (3) John Doe prison officials.

The Complaint includes Bivens¹ type civil rights claims, allegations under the Americans with Disabilities Act, and "pendentstate claims."² Doc. 1, ¶ 1. According to the Complaint, Plaintiff arrived at USP-Lewisburg on or about October 4, 2010. Carvalho states that his first assigned cellmate was Franklin Stokes, a prisoner with a history of assaulting fellow inmates. See Doc. 1, ¶ 25.

It is initially alleged that on November 26, 2010 Plaintiff was attacked without provocation by Inmate Stokes. At the time of the attack, Carvalho was allegedly in handcuffs which prevented him from being able to defend himself. The Complaint asserts that unidentified correctional officers who witnessed the attack failed to intervene. As a result of their failure, Plaintiff suffered additional injuries.³ Following this incident, Carvalho was transferred to a private cell where he purportedly began to develop noticeable signs of post traumatic stress.

On December 11, 2010, Plaintiff was assigned to share a cell with Donald Taylor. Inmate Taylor is described as having "an unusually marked disposition to gross physical assaults." Id. at ¶ 30. It is specifically alleged that Taylor had previously attacked one or more USP-Lewisburg prisoners by biting or tearing off parts of his victims' ears or otherwise seriously wounding them. Inmate Taylor is further described as being of a "psychopathic and dangerous nature" who posed a direct threat to staff and prisoners alike. Id. at ¶ 35.

The Complaint states that on December 11, 2010 Taylor suddenly attacked Plaintiff without warning or provocation by striking him in the head and slamming his head into a metal tray. During the attack Plaintiff asserts that he passed in and out of consciousness. It is alleged that despite pleas from other prisoners and Carvalho himself, prison staff failed to intervene. As the attack continued, Taylor bit off and swallowed the upper portions of Plaintiff's ears and repeatedly slashed him with a razor blade. Plaintiff also suffered a broken nose (in four places); facial lacerations requiring fifteen stitches; a shattered left eye socket and cheekbone. See id. at ¶ 48. Additionally, Carvalho claims that his post traumatic and emotional distress were aggravated by this latest attack.

Plaintiff next alleges that during the relevant time period USP-Lewisburg had an unconstitutional "settled policy" (a/k/a the "f-king or fighting rule") of not intervening in physical confrontations between prisoners until actual physical violence or overt sexual assault were taking place. Id. at ¶ 49-50. Moreover, Carvalho contends that he was unable to signal for help due to an absence of adequate warning or other safety devices in his cell and because the staff at USP-Lewisburg were not adequately trained, supervised or regulated.

It is also asserted that following the incident Plaintiff was transferred to the Geisinger Medical Center which is an outside contract medical service provider for the BOP. However, Carvalho maintains that he was only afforded "palliative care" and "temporary remedial treatment" for his severe and disfiguringinjuries. Id. at ¶ 91. Plaintiff further contends that he has not been provided with adequate dental and psychological care as well as treatment and therapy for his pre-existing scoliosis.

The Complaint next seeks relief on the basis that prison officials punish inmates such as Carvalho who make complaints by placing such prisoners in hazardous cohabitation or close proximity with known violent prisoners. In addition, Plaintiff describes USP-Lewisburg (a/k/a gladiator school or academy) as having a reputation for substantial gang related activity. This purported gang related activity and violence is allegedly indirectly and implicitly encouraged by prison staff.

Plaintiff additionally contends that he was placed in direct physical restraints for prolonged periods of time for pursuing administrative grievances. See id. at ¶ 67. It is also alleged that prison officials have impeded Plaintiff's ability to seek administrative relief by withholding forms, interfered with his right to obtain good time credits, threatened him with reprisals and provided him with misinformation with respect to the administrative grievance system; and interfered with his ability to contact his legal counsel.

In conclusion, the Complaint argues that the above described conduct violated Carvahlo's constitutional rights; constituted negligent medical⁴ , dental, and psychological care; and violated the Americans with Disabilities Act (ADA) with respect to Carvalho's scoliosis. Plaintiff also raises pendent state lawclaims of intentional infliction of emotional distress, negligent infliction of emotional distress as well as assault and battery. His Complaint also indicates that Carvalho may be seeking relief under the FTCA. As relief, the Complaint seeks compensatory and punitive damages as well as injunctive relief and attorney's fees.

Defendants have responded to the Complaint by filing a motion to dismiss and for summary judgment. See Doc. 13. The opposed motion is ripe for consideration.⁵

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. UnitedStates, 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.")

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 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)).

FTCA

Count Four of the Complaint asserts a claim of general negligence. In Count Six, Plaintiff asserts that Defendants' alleged failure to provide him with adequate security and medical care constituted malpractice. It appears that those two counts are seeking relief pursuant to the FTCA.⁶

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, 150 (1963). Under the FTCA, sovereign immunity is waived against persons suing the federal government for the commission of various torts. See Simon v. United States, 341F. 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. 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.⁷ See 28 U.S.C. § 2679(d).

Based upon this Court's initial review of...