Ward v. United States, 1:17-cv-1685

DEMONTRAY LARELL WARD, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants

1:17-cv-1685

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

August 29, 2018

Hon. John E. Jones III

MEMORANDUM

Plaintiff Demontray Larell Ward ("Ward" or "Plaintiff"), a federal inmate in the custody of the Federal Bureau of Prisons ("BOP"), incarcerated at the United States Penitentiary at Lewisburg ("USP-Lewisburg"), Pennsylvania, commenced this Bivens¹ and Federal Tort Claims Act (FTCA)² action on September 18, 2017. (Doc. 1). Ward alleges that on December 23, 2016, he was assaulted by recreational staff at USP-Lewisburg and that he suffered an ankle injury during theassault. (Doc. 1, pp. 4, 5). He names as Defendants the United States of America ("United States"), Officer Wolfgang ("Wolfgang"), Officer Hoffa ("Hoffa"), Officer Johnson ("Johnson"), Lori Hartzel, RN ("Hartzel"), Andrew Edinger, MD ("Edinger"), Lupold, Officer Fisher ("Fisher"), Officer Homes ("Homes"), and Officer Ritz ("Ritz").

Presently pending is a motion (Doc. 24) for summary judgment pursuant to Federal Rule of Civil Procedure 56, filed on February 18, 2018, on behalf of all Defendants except Johnson and Fisher. Defendants' supporting brief (Doc. 28) and statement of material facts (Doc. 29), accompanied by supporting documentation (Doc. 29-1) were filed on March 2, 2018. Defendants seek an entry of judgment based on Ward's failure to exhaust his administrative remedies. Accordingly, on May 16, 2018, in accordance with Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018) and Small v. Camden Cty., 728 F.3d 265 (3d Cir. 2013), the Court placed the parties on notice that it intended to consider exhaustion in its role as factfinder, and afforded the parties the opportunity to supplement the record with evidence relevant to the issue of administrative exhaustion. (Doc. 31). The Court further instructed Ward to submit an opposition brief and statement of material facts as required by Local Rule 56.1. (Id.) On May 23, 2018, Ward sought (Doc. 32) an additional ninety days to respond to Defendants' motion. TheCourt granted the motion and afforded Ward until August 23, 2018, to oppose Defendants' motion. (Doc. 36). He was cautioned that no further extensions of time would be granted absent good cause shown. (Id.) Ward has failed to file an opposition brief and a statement of material facts and the deadline for doing so has passed. Therefore, Defendants' motion is unopposed and the statement of material facts is deemed admitted. See L.R. 7.6 and 56.1. For the reasons set forth below, the motion will be deemed unopposed and granted.

With respect to Defendants Fisher and Johnson, the Waivers of the Service of the Summons sent to Fisher and Johnson have been returned as unexecuted with notations that the officers were unable to be identified. (Doc. 13, p. 1; Doc. 18, p. 2). Ward is proceeding in forma pauperis. (Doc. 7). A federal court must dismiss a civil action filed in forma pauperis if the court determines that the complaint "fails to state a claim on which relief may be granted." 28 U.S.C. §1915(e)(2)(B)(ii). For the reasons set forth below, the Court concludes that the complaint against Defendants Fisher and Johnson is subject to dismissal pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) for failure to state a claim.

I. SUMMARY JUDGMENT

A. Standard of Review

Summary judgment "should be rendered 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 judgment as a matter of law." FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990). A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Id.; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). Once such a showing has been made, the non-moving party must go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. FED. R. CIV. P. 56; Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986) (stating that the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Wooler v. Citizens Bank, 274 F. App'x 177, 179 (3d Cir. 2008). The party opposing the motion must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex. at 323; see also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). "[T]he non-moving party 'may not rely merely on allegations or denials in its own pleadings; rather, its response must . . . set out specific facts showing a genuine issue for trial.'" Picozzi v. Haulderman, 2011 WL 830331, *2 (M.D. Pa. 2011) (quoting FED. R. CIV. P. 56(e)(2)). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

B. Statement of Material Facts

"A motion for summary judgment filed pursuant to Federal Rule of Civil Procedure FED. R. CIV. P. 56 shall be accompanied by a separate, short and concise statement of the material facts . . . as to which the moving party contends there is no genuine issue to be tried." See L.R. 56.1. The opposing party shall file a separate statement of the material facts as to which it is contended that there exists a genuine issue to be tried. Id. "All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." Id. Ward has filed to file a separate statement of material facts. Consequently, Defendants' statement (Doc. 29) is deemed admitted.

1. Bivens Claim

The BOP Administrative Remedy Program is a multi-tier process that is available to inmates confined in institutions operated by the BOP for review of issues related to any aspect of their confinement. (Doc. 29, ¶ 1, citing, 28 C.F.R. §542.10 et seq.). An inmate must initially attempt to informally resolve the issuewith institutional staff. (Id. at 2, citing 28 C.F.R. § 542.13(a)). If informal resolution fails an inmate may submit a request to the Warden within twenty days of the date on which the basis for the request occurred. (Id. at 3, citing 28 C.F.R. § 542.14(a)). The warden has twenty days to respond. (Id. at 4, citing 28 C.F.R. § 542.18) An inmate who is dissatisfied with the Warden's response may submit an appeal to the Regional Director of the BOP within twenty days of the date the Warden signed the response. (Id. at 5, citing 28 C.F.R. § 542.15(a)). If the Regional Director denies the appeal, the inmate may then appeal to the BOP's Central Office (or General Counsel) within thirty days of the denial. (Id. at 6). The Regional Director has thirty days to respond. (Id. at 7). If, at any level of review, an inmate does not receive a response within the time allotted, the inmate may consider the absence of a response to be a denial at that level. (Doc. 29-1, Declaration of Jonathan Kerr ("Kerr Decl."), ¶ 4 citing 28 C.F.R. § 542.18). Exhaustion of the administrative remedy procedure requires an inmate to pursue the grievance through all levels of review. (Id. citing 28 C.F.R. § 542.15(a)).

On October 18, 2017, Ward filed administrative remedy number 918738-F1 seeking medical attention for an ankle problem causing him pain. (Doc. 28, ¶ 8). That same day, the remedy was rejected because Ward failed to first attempt informal resolution as required by 28 C.F.R. § 542.13(a). (Id. at 9). He wasinstructed to attempt an informal resolution with the Health Services Department at USP Lewisburg and, if unsatisfied with the outcome, resubmit the Administrative Remedy within five days of the rejection notice. (Id. at 10). Ward failed to file an informal resolution or any other administrative remedy regarding an excessive force claim or an injury to his ankle. (Id. at 11)

2. FTCA Claims

The BOP has an administrative tort claim process through which an inmate can seek compensation from the United States for personal injury, wrongful death, or loss of property. (Doc. 29, ¶ 12, citing 28 C.F.R. §§ 543.30-543.32, BOP Program Statement ("Program Statement")1320.06). Specifically, BOP inmates may commence an administrative tort claim pursuant to the FTCA by filing a claim with the Regional Office. (Id. at 14, citing 28 C.F.R. § 543.31(c) and Program Statement 320.06 at 3). If the claim is denied, the inmate can "request, in writing, that the Bureau of Prisons reconsider [the] claim in the...