Little v. Mottern

MICHAEL R. LITTLE, et al., Plaintiffs v. B. MOTTERN, et al., Defendants

No. 1:14-CV-00953

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

March 7, 2017

(Judge Kane)

MEMORANDUM

I. Background

On May 19, 2014, Plaintiffs Michael R. Little and Kareem H. Milhouse, inmates confined at the United States Penitentiary at Lewisburg, Pennsylvania ("USP-Lewisburg"), filed the instant civil rights action pro se pursuant to 28 U.S.C. § 1331, the Federal Tort Claims Act ("FTCA"), and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).¹ The same daythe court issued its Standing Practice Order which advised Little and Milhouse, inter alia, of their briefing obligations under the Local Rules of Court. (Doc. Nos. 5, 6) Attached to the Standing Practice Order were copies of the pertinent Local Rules. Plaintiff Little was authorized to proceed with this case under the in forma pauperis provision of the Prison Litigation Reform Act ("PLRA")² and Defendants enumerated herein waived service of the complaint.

Plaintiff Milhouse was terminated from this action on October 7, 2014, because he had three prior actions dismissed under 28 U.S.C. § 1915(e)(2), and he could only proceed without paying the full filing if he was under imminent danger of serious physical injury. (Doc. No. 38.) By memorandum and separate order of September 2, 2015, the court determined that Milhouse was not under imminent danger of serious physical injury at the time he filed his complaint and dismissed Milhouse's claims for failure to pay the filing fee. (Doc. Nos. 116, 117.) Milhouse filed a motionfor reconsideration under Rule 60 of the Federal Rules of Civil Procedure. Milhouse claimed that he did not have three strikes at the time he filed this action.³ By order of April 26, 2016, the court granted Milhouse's Rule 60 motion. (Doc. No. 161.) The court also denied without prejudice a pending motion to dismiss and/or for summary judgment (Doc. No. 120) which only addressed Little's claims. (Id.) The court indicated that the Defendants could refile within 60 days a motion which addressed both the claims of Little and Milhouse. (Id.) On June 28, 2016, the court extended the deadline for filing such a motion to July 11, 2016.⁴

The action is proceeding on the basis of a third amended complaint filed by Little and Milhouse on September 2, 2014, raising claims under Bivens and the FTCA. (Doc. No. 35.) The third amended complaint is handwritten in a small, rambling, single-spaced script. (Id.) The third amended complaint focuses on three groups of defendants. (Id.) It also primarily focuses on two periods of time. (Id.) The allegations in the third amended complaint are disjointed. The court will first list thedefendants and then set forth the allegations in a chronological and coherent manner.

The first group of defendants was allegedly involved in incidents which occurred during May through August, 2014, and consists of the following individuals employed at USP-Lewisburg: (1) Brandon Mottern, Correctional Officer; (2) Hamsa Boussag, Correctional Officer; (3) Jerald Loyek, Correctional Officer; (4) Jeffrey Butler, Associate Warden; (5) J.E. Thomas, Warden; (6) James Eck, Correctional Officer; (7) Daniel Dowkus, Lieutenant; (8) James Diltz, Correctional Counselor; (9) Suzanna Heath, Special Investigations Agent; (10) Frederick Entzel, Captain; and (11) Brent Taggart, Deputy Captain. (Id. at 1.)

The second group of defendants consists of the following individuals employed at the United States Penitentiary at McCreary, Pine Knot, Kentucky ("USP-McCreary"): (1) J.C. Holland, Warden; (2) Angela Hubbard, Correctional Officer; and (3) Trinity Middleton, Correctional Officer. (Id.)

The third group of defendants consists of the United States and the Federal Bureau of Prisons. (Id.) The third amended complaint does not set forth any allegations specifically directed at the United States or the Federal Bureau of Prisons. The apparent basis for naming the United States is that it is allegedly liable under the FTCA for wrongful acts committed by prison staff at USP-Lewisburg and USP-McCreary. However, the court will summarily dismiss the case as it relates to the FederalBureau of Prisons because claims against a federal agency are not cognizable under the FTCA or Bivens. FDIC v. Meyer, 510 U.S. 471, 473 (1994); Dambach v. United States, 211 F. App'x 105, 108 (3d Cir. Dec. 19, 2006); 28 U.S.C. § 2679(a).

With respect to the first group, it is alleged in the third amended complaint that on May 7, 2014, when Defendant Diltz was performing rounds at approximately 1:15 p.m. on the cell block where Little was housed, Little asked him for an administrative remedy form (BP-8) but Diltz denied the request. (Id. at 5.) The next day, May 8, 2014, at approximately 5:05 p.m., Defendants Mottern, Boussag and Loyek came to the cell shared by Milhouse and Little, and Mottern ordered them to "cuff up cock sucking rat bastards . . . yeah I read y'all files." (Id. at 2.) Plaintiffs allege that Boussag then stated "Hurry Rats today" (Id. at 2, 4) and Loyek also stated: "Y'all can't hide here with all that snitching. This Lewisburg. This ain't SHU. Y'all at the Big House." (Id. at 3.) Milhouse and Little claim that the statements were "loudly [stated] on [the cell] tier and other inmates heard" the statements and as a result other inmates began threatening them and spreading the information to inmates in other cell blocks. (Id. at 1.)

Milhouse claims that after he was removed from his cell on May 8, 2014, that Mottern while escorting him to a shower stated: "Do something guy. I'll fuck you up." (Id. at 2.) As they approached the shower Milhouse claims Mottern pushed himinside and stated: "I'll roll you like a turd. . . This is a new program with new lieutenants and new procedures . . . we don't bullshit." (Id.) Milhouse claims that Mottern locked the shower and left but after 15 minutes returned with Boussag at which time Milhouse states he was placed in paper clothes and then handcuffed. (Id.) Milhouse alleges that Boussag then "became overly aggressive and belligerent" and stated "Fuck you, the courts and your lawyer mother." (Id.) As the shower door was opened, Milhouse claims that Boussag grabbed his penis and testicles and stated: "I molest fagots like you little dick motherfucker." (Id.) Milhouse then claims he was slammed to the floor by Mottern and Boussag, and Mottern sat on his back while Boussag "stuck an object inside [his] rectum, and stated "cum now motherfucker." (Id.) Milhouse then alleges that Mottern subsequently "fabricated [an] incident report which was expunged[.]" (Id.)

Little claims that when he was removed from the cell on May 8, 2014, he was escorted to the shower area and Boussag patted him down and squeezed his private parts and "boasted how [the] government trained him, he got big guns (sic) and if he catch (sic) Plaintiff(s) in Pennsylvania he'll kill them." (Id. at 4.)

After the incident of May 8, 2014, Plaintiffs allege that they requested grievance forms from prison staff and apparently attempted to file grievances. (Id. at 4-5.) The court will subsequently review the alleged attempts by Plaintiffs tofile grievances after completing a review of their allegations regarding being labeled as informants, verbal threats and being assaulted physically. The court will, however, review at this point attempts at filing grievances where there were alleged attempts by prison official to discourage such filing.

Little claims that on May 14, 2014, he submitted sensitive administrative remedy forms to the Regional Office⁵ regarding the incident of May 8, 2014, but that those forms were destroyed by Defendant Diltz. (Id. at 4-5.)

Little alleges that on May 15, 2014, he requested a administrative remedy form from Defendant Diltz who was performing rounds on the cell block where he was housed. (Id.) Little alleges he needed the form to grieve incidents which occurred at USP-McCreary and that Diltz denied the request and stated as follows: "Fuck that start new. You not at McCreary no more! . . . You keep fucking filing bullshit on staff!" (Id.) Little claimsthat Diltz destroyed an administrative remedy form relating to the May 8, 2014, incident and that his refusal to provide him with an administrative remedy form was retaliatory in order to prevent him from filing a civil complaint. (Id.)

Plaintiffs allege that (1) on May 18, 2014, at approximately 9:30 p.m., Defendant Eck came to their cell and stated as follows: "Y'all keep fucking telling the warden on my coworkers sooner or later that shit gonna catch up to y'all!" (Id. at 4) and (2) on May 19, 2014, Boussag approached their cell and stated that it was their fault because they disrespected his coworkers and further stated as follows:

So we just reacted and now your telling the fucking warden, Region Director and Office of Inspector General. That don't mean shit. I gonna make you so miserable that your (sic) going to kill yourself. Your (sic) suicidal. I will fuck with your food, your mail won't go out. You won't get the phone. I know inmates is (sic) after you and I heard them threaten you, because your (sic) a fucking rat. Sooner or later y'all will be in the very same rec[reation] cage[.]"

(Id. at 2-3.)

Little alleges that on May 20, 2014, he requested an administrative remedy form from Defendant Diltz who was performing rounds on the cell block where he was housed. (Id. at 5.) Little alleges Diltz denied the request and stated as follows: "I ain't giving you shit "Boy" to file on staff! Fuck your safety! Stop bitching!" (Id.) Little further claims that Diltz refused to let him file for protective custody "due to the rat label[.]" (Id.)

Little claims that on May 21, 2014, that he reported to Defendant Heath the alleged misconduct of staff and the taunts and threats he "gets from inmates" as the result of being labeled a snitch. (Id. at 5-6.) Little claims that Defendant Dowkus...