Opinion
CIVIL ACTION NO. 3:18-cv-00625
11-19-2019
ANTHONY MONEYHAM, Plaintiff, v. UNITED STATES, et al., Defendants.
(MUNLEY, J.)
() REPORT AND RECOMMENDATION
This is a federal civil rights action, brought by pro se plaintiff Anthony Moneyham, a former federal inmate who was incarcerated at USP Lewisburg, located in Union County, Pennsylvania, at the time of filing. The plaintiff's original complaint was filed on March 19, 2018. (Doc. 1). The plaintiff has been granted leave to proceed in forma pauperis in this action. (Doc. 8).
The plaintiff filed an amended complaint on March 25, 2019. (Doc. 29.) The amended complaint names two individual prison officials and the United States as defendants. It alleges the violation of Moneyham's federal constitutional rights, seeking an award of damages pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In particular, Moneyham alleges that, on April 1, 2017, both of the named individual defendants—Lieutenant Leonowicz and Officer Sheesley—refused to allow him to take a scheduled shower. For his part, Moneyham allegedly refused to permit prison officials to take his mattress. Lieutenant Leonowicz returned with a use-of-force team, which included Officer Sheesley as a participant. Moneyham allegedly complied with instructions by the use-of-force team that he submit to hand restraints. He was removed from his cell, additional ambulatory restraints were applied, and he was escorted to a different cell. As the use-of-force team began exiting this second cell, Moneyham alleges that defendant Sheesley twisted his leg restraints, causing him to scream in pain. Meanwhile, Moneyham alleges that defendant Leonowicz failed to intervene to protect him from this conduct by Sheesley. Based on these factual allegations, Moneyham claims that Sheesley used excessive force against him, and Leonowicz failed to protect Moneyham from the use of excessive force by Sheesley, in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Moneyham also appears to seek to hold the United States liable for the state law torts of battery (by Sheesley) and negligence (by Leonowicz) under the Federal Tort Claims Act ("FTCA").
In lieu of an answer, the defendants have filed a motion to dismiss or, in the alternative, for motion for summary judgment, together with a statement of material facts with supporting exhibits and a brief in support. (Doc. 36; Doc. 39 & attachs.; Doc. 40). Despite multiple extensions of time, the plaintiff has failed to file any response whatsoever to the defendants' motion. (See Doc. 44; Doc. 47; Doc. 49). The motion is now ripe for disposition.
I. UNDISPUTED MATERIAL FACTS
The material facts of this case are undisputed.
Moneyham has failed to file a counter-statement of material facts. Thus, as discussed more thoroughly below, the defendants' statement of material facts is deemed admitted. See L.R. 56.1; Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175-76 (3d Cir. 1990). In addition to the defendants' statement of material facts, we have reviewed the supporting documentation and video recording, all of which is entirely consistent with the defendants' statement of material facts.
BOP Program Statement 5566.06, Use of Force, governs the application of restraints. Pursuant to this program statement, staff are authorized to apply physical restraints as necessary to gain control of an inmate who appears to be dangerous because, for example, the inmate is assaulting another individual, has become violent, or is displaying signs of imminent violence.
Ambulatory restraints are defined as approved soft and hard restraint equipment, which allow the inmate to eat, drink, and take care of basic human needs without staff intervention. The program statement provides that ambulatory restraints should be used to restrain an inmate if deemed appropriate for the situation.
Placing an inmate in ambulatory restraints for a period of time may be appropriate for protecting staff and others pending an assessment to determine whether the inmate has regained self-control. Staff are instructed to look for a pattern of non-disruptive behavior over a period of time as an indication that an inmate has regained self-control and is no longer a disruptive threat.
Based on staff assessment, an inmate can be either removed from restraints, continued in them, or placed in progressively more restrictive restraints. Staff are required to assess an inmate and log their observations every 15 minutes. A lieutenant is also required to assess and log observations every two hours. Medical staff must check restraints twice during each eight-hour shift, and psychology staff are required to check inmates every 24 hours until the inmate is released from restraints.
Staff are required to videotape the use of force and application of restraints and to complete a "Report of Incident" form detailing the incident and staff involved. Under the program statement, an after-action review is performed to determine if the use of force and restraints was reasonable and appropriate.
The plaintiff, Anthony Moneyham, was formerly incarcerated in the Special Management Unit ("SMU") at USP Lewisburg. On April 1, 2017, while incarcerated in the SMU, Moneyham became disruptive when asked to forfeit his mattress due to a disciplinary infraction. As staff attempted to get Moneyham to submit to hand restraints in order to search his cell, he threatened to stab staff.
Due to Moneyham displaying signs of imminent violence and threatening staff, the warden authorized a use-of-force team to remove Moneyham from his cell and place him in restraints. Officer Sheesley was one of the members of the use-of-force team. Lieutenant Leonowicz oversaw the use-of-force team.
Moneyham complied with the use-of-force team and was removed from his cell, where he was then visually searched, metal-detected, and placed in alternate clothing. After Moneyham was placed in ambulatory restraints, he was photographed and medically assessed with no injuries noted.
Officer Sheesley was in charge of securing Moneyham's left arm and carrying and applying the ambulatory restraints. Although Moneyham stated that the chain was applied too tightly, the medical assessment found the restraints were properly applied. At no time did Officer Sheesley twist Moneyham's restraints.
After Moneyham had been placed in ambulatory restraints, prison staff began fifteen-minute checks in accordance with Program Statement 5566.06, and they noted their observations in the restraint check logs. Two-hour lieutenant checks were also conducted in accordance with Program Statement 5566.06. Medical staff performed restraint checks twice during each eight-hour shift.
Moneyham was observed manipulating the restraints on multiple occasions, and he was advised on the dangers of doing so. The hand restraints were re-adjusted several times due to swelling in Moneyham's right hand. Moneyham was removed from restraints at 8:00 a.m. on April 2, 2017, less than twenty-four hours after being placed in restraints. An after-action review found the use of force and application of restraints were reasonable and appropriate.
II. LEGAL STANDARDS
A. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is "genuine" only if the evidence "is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all 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." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must set forth specific facts, supported by the record, demonstrating that "the evidence presents a sufficient disagreement to require submission to the jury." Anderson, 477 U.S. at 251-52.
In evaluating a motion for summary judgment, the Court must first determine if the moving party has made a prima facie showing that it is entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331. Only once that prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331.
Both parties may cite to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers or other materials." Fed. R. Civ. P. 56(c)(1)(A). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). "Although evidence may be considered in a form which is inadmissible at trial, the content of the evidence must be capable of admission at trial." Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 599 (M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary judgment, to consider evidence that is not admissible at trial).
Here, the defendants have moved for summary judgment, but the plaintiff has failed to submit a brief in opposition or any other papers contesting the defendant's motion. The plaintiff's failure to actively oppose the defendant's motion for summary judgment implicates two local rules, which provide that a party who fails to file a brief in opposition to a motion "shall be deemed not to oppose such motion," L.R. 7.6, and that all material facts set forth in the movant's statement of material facts "will be deemed to be admitted unless controverted" by a counter-statement of material facts by the non-movant, L.R. 56.1.
However, the plaintiff's failure to respond to the motion does not mean that the defendants are automatically entitled to summary judgment. See Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). These local rules must be construed and applied in a manner consistent with Rule 56 of the Federal Rules of Civil Procedure. See id. at 174. Thus, in the context of a motion for summary judgment, a non-movant's failure to file an opposition brief and counter-statement of material facts is "construed as effecting a waiver of [the non-movant's] right to controvert the facts asserted by the moving party in the motion for summary judgment or the supporting material accompanying it." Id. at 175-76. The moving party must nevertheless establish that, based on the facts set forth in support of its motion, it is entitled to judgment as a matter of law. See id.; see also Lorenzo v. Griffith, 12 F.3d 23, 28 (3d Cir. 1993); Miller v. Ashcroft, 76 Fed. App'x 457, 462 (3d Cir. 2003) ("Even though the applicable [Middle District of Pennsylvania] local rules provide that a summary judgment motion is to be considered unopposed and its statement of material facts admitted where a responsive brief is not timely filed, the Magistrate Judge was still required to find that the undisputed facts warranted judgment as a matter of law.") (citations omitted).
In other words, in the absence of active opposition by the non-movant, the two-step, burden-shifting analysis that normally applies on summary judgment is abbreviated to just the first step, requiring the moving party to make a prima facie showing that it is entitled to summary judgment, based on the undisputed facts of record. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331.
B. Sua Sponte Dismissal Standard
Under 28 U.S.C. § 1915A, the Court is obligated to screen a civil complaint in which a prisoner is seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep't of Corr., 230 Fed. App'x 195, 197 (3d Cir. 2007). The Court must dismiss the complaint if it "fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1). The Court has a similar obligation with respect to actions brought in forma pauperis and actions concerning prison conditions. See 28 U.S.C. § 1915(e)(2)(B)(i); id. § 1915(e)(2)(B)(ii); 42 U.S.C. § 1997e(c)(1). See generally Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 587-89 (W.D. Pa. 2008) (summarizing prisoner litigation screening procedures and standards).
The legal standard for dismissing a complaint for failure to state a claim under § 1915A(b)(1), § 1915(e)(2)(B)(ii), or § 1997e(c) is the same as that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010); Banks, 568 F. Supp. 2d at 588. "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. Sept. 25, 2018); Sourovelis v. City of Philadelphia, 246 F. Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks, 568 F. Supp. 2d at 588-89.
III. DISCUSSION
A. Claims Regarding the Use of Force
Moneyham claims that defendant Sheesley used excessive force during a cell extraction by twisting his leg restraints and causing him pain, in violation of his Eighth Amendment rights. Moneyham claims that defendant Leonowicz failed to intervene to protect him from this allegedly unconstitutional conduct by Sheesley, also in violation of his Eighth Amendment rights. Moneyham further claims, under the FTCA, that this same conduct by Sheesley constitutes the state law tort of battery, and that Leonowicz's failure to prevent it constitutes the state law tort of negligence. Ultimately, all of these claims are founded on the same factual allegation: Sheesley allegedly twisted Moneyham's leg restraints, causing Moneyham to scream out in pain.
To prevail against Officer Sheesley, "the core judicial inquiry is . . . whether the force used was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992).
To prevail against Lieutenant Leonowicz, the plaintiff must show that: (1) he is incarcerated under conditions posing a substantial risk of serious harm (the objective element); and (2) prison officials acted with deliberate indifference, i.e., that prison officials knew of and disregarded an excessive risk to inmate health or safety (the subjective element). See Farmer v. Brennan, 511 U.S. at 833-34 (1970).
With respect to the plaintiff's battery claim against the United States, which is based on the conduct of Officer Sheesley, we note that "incidental and necessary touchings by correctional officers of [an] inmate[] in the performance of their duties are not batteries, but privileged contacts." Pircariello v. Fenton, 491 F. Supp. 1026, 1038 (M.D. Pa. 1980). Under Pennsylvania law, "officials charged with the custody of prisoners are privileged to use force which is reasonable under the circumstances to maintain control of their charges." Id.; see also Bakhtiari v. Spaulding, No. 1:17-CV-00016, 2017 WL 2778524, at *6 (M.D. Pa. June 27, 2017) ("While corrections officers have the authority to use necessary force under appropriate circumstances, the reasonableness of this force in relation to their employment duties determines whether particular conduct is considered an assault and battery."). Similarly, "[t]he placement of restraints on an inmate . . . would be privileged if that conduct was reasonably necessary in the circumstances." Picariello, 491 F. Supp. at 1038-39. Thus, if a correctional officer uses reasonable force necessary to carry out his duties, that amount of force when applied to a prisoner is not tortious. Id. at 1041. Thus, to prevail on his battery claim, the plaintiff must demonstrate that the amount of force used by Sheesley was greater than that which was reasonable under the circumstances to maintain control of the plaintiff.
To prevail on his negligent supervision claim against the United States, which is based on the conduct of Lieutenant Leonowicz, the plaintiff must demonstrate, among other things, that Leonowicz knew or had reason to know of a preexisting propensity on Sheesley's part to engage in assaultive conduct toward inmates. See Pinder v. Kennelley, C.A. No. 18-115 Erie, 2019 WL 1115892, at *2 (W.D. Pa. Mar. 11, 2019).
The defendants have moved for summary judgment on these claims. In their statement of material facts, the defendants have expressly and unequivocally stated that: "At no time did Defendant Officer Sheesley twist Moneyham's restraints." (Doc. 39 ¶ 23.) In failing to file a counter-statement of material facts, or to respond in any other fashion whatsoever, Moneyham has effectively admitted this critical fact upon which almost all his claims rest. See L.R. 56.1; see also Anchorage Assocs., 922 F.2d at 175-76. The defendants have further supported this fact with evidence as well. They have submitted the declaration of defendant Sheesley, which likewise states unequivocally that: "At no time did I twist inmate Moneyham's restraints." (Doc. 39-1, at 26.) They have also submitted declarations by others and documentary evidence indicating that Moneyham suffered no injuries—much less any serious injuries—as a result of this use of force and his placement in restraints. (See Doc. 39-1, at 2, 8, 9, 20-22, 28, 29, 32-54.)
We have also reviewed video footage of the use-of-force event submitted by the defendants. (Doc. 41.) We note that Moneyham did, in fact, yelp twice while being placed on a bunk in the second cell, just before the use-of-force team exited. But we further note that Sheesley, in the "number three" position of the team, can be seen standing upright and out of contact with Moneyham at the time of this vocalization. Moreover, just moments later, after the use-of-force team had exited the cell and the door had been secured, the video footage clearly documents Moneyham standing up from the bunk where he had been placed and then walking about the cell, during which time he does not appear to have been in any physical distress or pain, and no sign of any injury is visible.
Based on the undisputed material facts and evidence adduced by the defendants, we find that (a) no reasonable jury could find that Officer Sheesley used excessive force during the cell extraction by twisting the plaintiff's leg restraints, or otherwise; (b) no reasonable jury could find that the use of force at issue in the April 1, 2017, cell extraction posed a substantial risk of serious harm to the plaintiff, nor could it find that Lieutenant Leonowicz was deliberately indifferent to an excessive risk to the plaintiff's health or safety; (c) no reasonable jury could find that the amount of force used by Sheesley was greater than that which was reasonable under the circumstances to maintain control of the plaintiff; and (d) no reasonable jury could find that Lieutenant Leonowicz knew or had reason to know of a preexisting propensity on Sheesley's part to engage in assaultive conduct toward inmates.
In his amended complaint, Moneyham did not claim that the use of force or application of restraints in a broader sense were unreasonable, but instead he focused solely on the alleged twisting of his restraints. With respect to the broader use of force and application of restraints in this case, we note that the undisputed facts and supporting evidence indicate that Moneyham had threatened violence to staff as a predicate to deployment of the use-of-force team and the application of restraints.
The defendants have met their burden of making a prima facie showing that they are entitled to judgment as a matter of law based on the undisputed facts of record. Accordingly, it is recommended that the defendants' summary judgment motion be granted with respect to the plaintiff's excessive force, failure to protect, and state-law tort claims.
B. Denial of Shower Claim
In their motion, the defendants have not addressed Moneyham's allegation that he was denied a scheduled shower on a single occasion by both individual defendants. But it is well established that "the denial of showers for a temporary period of time does not rise to the level of a constitutional violation." Barndt v. Wenerowicz, 698 Fed. App'x 673, 677 (3d Cir. 2017) (per curiam); see also Rodriguez v. Thomas, 299 F. Supp. 3d 618, 639 (M.D. Pa. 2018) ("The Eighth Amendment does not require that prisoners be afforded frequent or comfortable showers."); Robinson v. Danberg, 729 F. Supp. 2d 666, 683 (D. Del. 2010) (finding that denial of a shower on a one-time basis, without more, did not deprive plaintiff of the "minimal civilized measures of life's necessities"). Accordingly, we recommend that the plaintiff's § 1983 denial of shower claim be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1). We further recommend that it be dismissed without leave to amend, as any amendment of this claim clearly would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. The plaintiff's § 1983 denial of shower claim be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1);
2. The defendants' motion to dismiss or for summary judgment (Doc. 36) be GRANTED;
3. The Clerk be directed to enter JUDGMENT in favor of the defendants and against the plaintiff with respect to the remainder of the plaintiff's claims; and
4. The Clerk be directed to CLOSE this case. Dated: November 19, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated November 19, 2019. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: November 19, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge