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Wesley v. United States

United States District Court, S.D. Mississippi, Northern Division

February 13, 2017




         Before the Court is [27] Defendants&#3');">3');">3');">39; June 6, 2016 motion to dismiss or alternatively for summary judgment on the pro se prisoner Plaintiff&#3');">3');">3');">39;s claims in this case arising from an incident which occurred August 6, 2012. Defendants urge dismissal of Plaintiff&#3');">3');">3');">39;s Federal Tort Claims Act (FTCA) negligence claim for lack of subject matter jurisdiction, and dismissal or summary judgment on his Bivens[1] claim against Lieutenant Henderson on grounds that Plaintiff failed to serve process on Henderson, failed to exhaust administrative remedies, failed to state a claim on which relief can be granted, and/or on grounds of qualified immunity. Wesley filed no response to the motion. In fact, he has filed nothing in this case since April 19, 2016.

         Facts and Procedural History

         Arvel Jermaine Wesley is a federal inmate serving a 70-month sentence with three years supervised release for a conviction of armed bank robbery. His release date is April 14, 2017. [26-1] Wesley&#3');">3');">3');">39;s complaint, which was received and filed by the Clerk on August 18, 2015, alleges he was assaulted by a fellow inmate while he was incarcerated at the Federal Correctional Complex in Yazoo City, Mississippi. By the time he filed this lawsuit, Wesley was imprisoned at the Federal Correctional Institution at Edgefield, South Carolina. [1-1]

         Wesley alleges that on August 6, 2012, he and inmates Dawes, Ostipow and Johnson were handcuffed and taken to the Special Housing Unit (SHU) recreation cages. After they were placed in a cage, an officer began removing their handcuffs, starting with inmate Dawes. As soon as Dawes&#3');">3');">3');">39; handcuffs were removed, he began hitting Wesley, who was still handcuffed. [1, ¶¶ 6-9] It is undisputed that some officer activated a body alarm which brought other officers (including Lt. Henderson) to the area, but no one immediately opened or entered the cage to stop the assault. Wesley heard someone telling Dawes to stop, and other witnesses identify Henderson as the one who told Dawes to stop. Dawes stopped and was again placed in restraints. Wesley contends Dawes stopped hitting him only after he grew tired. [1, pp. 3');">3');">3');">3, 12, 14, 17] Wesley attached to his complaint affidavits of the other two inmates who were in the cage with him when the assault occurred; inmate Ostipow estimated the assault lasted just over a minute or perhaps less, and inmate Johnson stated it lasted one and one-half minutes or less. [1, pp. 14-17]

         Wesley was taken to the medical department immediately following the incident, as reflected in prison medical records attached as an exhibit to his complaint. According to these records, Wesley stated a “dude just walked up and started hitting me.” Wesley reported no symptoms and examination showed he had a scratch to his left thumb, and abrasions to his right elbow, to his left arm below the elbow, and to both knees, with no other injuries noted. [1, pp. 20-22] Eight hours later, Wesley received additional medical attention when he complained of a headache from having hit his head on the ground. Medical personnel found he had a “small raised firm area to right temporal area of scalp, no bruising, no open area, complaint of mild tenderness on palpation of area.” Wesley was given medication, and he denied any further pain or symptoms. [1, pp. 23');">3');">3');">3-26] Wesley stated he has been diagnosed with post-traumatic stress syndrome [1, ¶ 21], and attached to his complaint psychological treatment records. [1, pp. 27-3');">3');">3');">36]

         Wesley contends the United States is liable to him under the FTCA because Bureau of Prisons (BOP) staff did not act quickly enough to stop the assault. Specifically, he alleges they failed to “exercise reasonable or ordinary care by opening the recreation cage and using force to cease the assault.” [1, ¶¶ 10-11] Wesley states this “constituted negligence resulting in a tort of assault and battery.” [1, ¶ 23');">3');">3');">3] His Bivens claims assert Henderson violated his Eighth Amendment rights by failing to protect him from inmate Dawes, and his First Amendment rights by coercing him into withdrawing Administrative Remedy ID number 703');">3');">3');">33');">3');">3');">321-F1. Wesley alleges Henderson threatened to kick Wesley&#3');">3');">3');">39;s a** and spit in his food trays if he did not drop the administrative remedy request. [1, ¶¶ 13');">3');">3');">3-17] Wesley claims Henderson&#3');">3');">3');">39;s actions made him “afraid to pursue and exhaust [his] Administrative Remedy Request, which is a prerequisite for obtaining access to the court” and constitutes a violation of his First Amendment rights. [1, ¶ 24]

         Wesley filed Administrative Remedy ID 703');">3');">3');">33');">3');">3');">321-F1 on August 19, 2012, giving the same account of the assault, complaining the officers&#3');">3');">3');">39; failure to open the cage and use force to stop Dawes violated BOP policy/procedure, and stating he wished to resolve the matter as follows:

1) That all staff present, and in error, during the assault be made aware of how their response was inadequate and contrary to policy. Subsequently advise and instruct said staff how to handle such situations; and 2) There be new procedures set in place to ensure that this type of failure to protect a handcuffed inmate will not transpire again; and 3');">3');">3');">3) Said staff members be held accountable under the Standards of Employee Conduct.

[1, pp. 18-19], [26-3');">3');">3');">3] The italicized portion of the above quote appears only in Wesley&#3');">3');">3');">39;s reconstructed second page of his remedy [1, p.19]; it is not included in the BOP file for Remedy ID 703');">3');">3');">33');">3');">3');">321. [26-3');">3');">3');">3, p. 5] The BOP file for this Remedy contains an August 23');">3');">3');">3, 2012 “Request for Administrative Remedy Attempt at Informal Resolution, ” bearing a handwritten notation “(SIS)” repeating the same facts, [2] which was “forwarded to the appropriate department, for further investigation of staff conduct during the allege (sic) assault.” [26-3');">3');">3');">3, p. 7] On September 14, 2012, Wesley signed a document stating he had resolved the matter of the August 6, 2012 and was voluntarily withdrawing the remedy. [26-3');">3');">3');">3, p. 3');">3');">3');">3]


         Plaintiff&#3');">3');">3');">39;s negligence claims:

         As a sovereign, the United States is immune from suit except to the extent it has consented to be sued. United States v. Sherwood, 3');">3');">3');">312 U.S. 584');">3');">3');">3');">312 U.S. 584, 586 (1941); Costigan v. United States, 2007 WL 1655269, at *3');">3');">3');">3 (W.D. Wash. June 7, 2007). The FTCA provides a limited waiver of sovereign immunity from suit and authorizes civil actions for claims for personal injury caused by negligent or wrongful acts or omissions of federal employees while acting within the scope of their office or employment. 28 U.S.C. § 13');">3');">3');">346(b)(1); King v. United States, 901 F.Supp.2d 781, 788 (S.D.Miss. 2012); Quijano v. United States, 3');">3');">3');">325 F.3');">3');">3');">3d 564, 567 (5th Cir. 2003');">3');">3');">3). Wesley asserted jurisdiction under the FTCA. On Defendants&#3');">3');">3');">39; motion to dismiss under Rule 12(b)(1), it was Wesley&#3');">3');">3');">39;s burden to prove “an unequivocal waiver of sovereign immunity and the existence of subject matter jurisdiction.” Rich v. United States, 2014 WL 2778652, at *4 (N.D. W.Va. June 19, 2014) (quoting LeRose v. United States, 285 Fed.Appx. 93');">3');">3');">3, 96 (4th Cir. 2008)), aff&#3');">3');">3');">39;d in part, vacated in part, and remanded, 3');">3');">3');">3d 140');">811 F.3');">3');">3');">3d 140 (4th Cir. 2015). The FTCA expressly provides that sovereign immunity is not waived for any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a); Lineberry v. United States, 2009 WL 763');">3');">3');">3052, at *5 (N.D. Tex. March 23');">3');">3');">3, 2009). Defendants contend Wesley&#3');">3');">3');">39;s negligence claims fall within this exception to the FTCA, and deprive the Court of subject matter jurisdiction over those claims.

         To determine applicability of the discretionary function exception, the Court examines first whether the challenged act/omission involved an element of judgment or choice, i.e., that there was room for choice in making the decision; and second, whether the judgment or choice of the kind which the exception was designed to shield. United States v. Gaubert, 3');">3');">3');">315');">499 U.S. 3');">3');">3');">315, 3');">3');">3');">322-23');">3');">3');">3 (1991); Ashford v. United States, 3');">3');">3');">3d 501');">511 F.3');">3');">3');">3d 501, 505 (5th Cir. 2007). If a “federal statute, regulation or policy” specifically prescribes a course of action for the federal employee to follow, the employee has no choice but to adhere to the directive, and the exception will not apply. Gaubert, 499 U.S. at 3');">3');">3');">322. The exception protects only governmental actions/decisions based on considerations of public policy. Id., 499 U.S. at 3');">3');">3');">323');">3');">3');">3. Wesley alleges that when Dawes began hitting him, BOP staff were required to immediately open the recreation cage and use force to stop him. He cites only a statement from commentary to the BOP program statement regarding officers&#3');">3');">3');">39; use of force, rather than the federal regulations governing BOP staff&#3');">3');">3');">39;s use of force. The undersigned finds the language of the regulations leaves discretion with BOP employees in dealing with situations such as the inmate altercation in the recreation cage in this case. For example, 28 C.F.R. § 552.20 “authorizes staff to use force only as a last alternative after ...

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