Opinion
Civil Action 3:20-28
05-05-2022
WILLIAM A. WHITE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
HAINES, JUDGE.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that Defendant's motion for summary judgment (ECF No. 139) be granted. It is further recommended that Plaintiff's Motion for Summary Judgment (ECF No. 145) be denied.
II. Report
Plaintiff William A. White (“White”), a prisoner currently incarcerated in the Federal Correctional Institution in Terre Haute, Indiana, brings this pro se civil rights action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 (“FTCA”). He is serving a lengthy sentence for convictions in multiple jurisdictions for extortion, extortion by interstate communications, threat by interstate communications, witness tampering, and solicitation to commit a violent act to influence a juror. His expected release date via Good Conduct Time Release is March 6, 2037.
White's claims arise out of conditions to which he was allegedly subjected at various prisons over a period of approximately ten years. For purposes of this action, which was severed from the larger lawsuit he brought, his claims relate to his incarceration at the Federal Correctional Institution at Loretto, Pennsylvania (“FCI Loretto”) between January 9, 2015 and February 20, 2015. These claims are contained in Counts 41(a) and 42(a) of the Second Amended Complaint.
Currently pending before the Court are cross-motions for summary judgment filed by the United States (ECF No. 139) and White (ECF No. 145).
A. Relevant Procedural History
1. The Original Lawsuit and Prior Proceedings
White filed the present suit in June 2017, in the United States District Court for the Southern District of Illinois (S.D. Ill. Case No. 3:17-cv-00683) because that court has jurisdiction over the United States Penitentiary in Marion, Illinois (“USP Marion”), where he was then incarcerated. He subsequently amended his complaint. (ECF Nos. 1, 8.) Thereafter, the Court appointed counsel for the purpose of filing a Second Amended Complaint, which he submitted on April 2, 2018. (ECF No. 49.) Subject matter jurisdiction is based on the federal question presented by the FTCA claims, 28 U.S.C. §§ 1331, 1346(b).
The Second Amended Complaint (“SAC”) consisted of 122 pages and 54 Counts in White asserted claims against the Federal Bureau of Prisons (“BOP”) and the United States Marshals Service (“USMS”). His claims of Intentional Infliction of Emotional Distress (“IIED”) and Negligent Infliction of Emotional Distress (“NIED”) were primarily based on White's claim that he was placed in solitary confinement in the Special Housing Unit (“SHU”) at various correctional institutions and was subjected to restricted environmental stimuli (“RES”) conditions. While also asserted a claim of battery against the USMS for conduct that allegedly occurred while conveying him between various institutions between October 18, 2008 and July 6, 2017 because the USMS employed a “black box restraint” during White's transportation between correctional facilities. White asserts that he was eventually diagnosed with Post Traumatic Stress Disorder (PTSD) which is related to the RES conditions. (SAC ¶¶ 69-72.)
SHUs “are housing units in Bureau institutions where inmates are securely separated from the general inmate population, and may be housed either alone or with other inmates. Special housing units help ensure the safety, security, and orderly operation of correctional facilities, and protect the public, by providing alternative housing assignments for inmates removed from the general population.” 28 C.F.R. § 541.21.
Several courts have acknowledged a condition, also known as “SHU syndrome,” as “as a collection of psychological symptoms experienced by inmates confined in cells with little social interaction or other sensory stimulus, particularly for lengthy periods of time.” Comer v. Stewart, 230 F.Supp.2d 1016, 1025 n.18 (D. Ariz. 2002). As indicated herein, White now admits that he was not kept in solitary confinement at FCI Loretto and the record does not support the allegation that he was subjected to RES conditions there.
The United States then filed a motion to dismiss, arguing that the claims against the USMS should be dismissed for failure to exhaust administrative remedies and that many of his claims were barred by the statute of limitations or filed in the wrong jurisdiction. (ECF No. 57.) The remainder of the claims, the government argued, should be dismissed for failure to state a claim under the pleading standards of Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On April 22, 2019, Magistrate Judge Mark A. Beatty issued a Report and Recommendation (“R&R”) with respect to the motion to dismiss. (ECF No. 70). On July 24, 2019, District Judge J. Phil Gilbert adopted as modified the Magistrate Judge's R&R (ECF No. 72). The court dismissed with prejudice all claims against the BOP that arose prior to 2015 (Counts 1-8, 13-14, 19-20 and 26-27) as untimely. The court dismissed without prejudice all claims against the USMS for White's failure to properly exhaust his administrative tort claim remedies prior to bringing suit. Finally, the court transferred Counts 37,38, 41,42, 47 and 48 (as to the BOP) to the Western District of Virginia pursuant to 28 U.S.C. § 1406(a). (Id. at 4.) The district court reasoned that since White claimed that his permanent residence was in Roanoke, Virginia, the Western District of Virginia was the proper venue for any claims which did not arise in the Southern District of Illinois. The Illinois court retained Counts 50,51, 53 and 54 as to the BOP. That case was dismissed with prejudice on September 27, 2021 and is currently on appeal.
As a result, the following counts, which were asserted only against the USMS, were dismissed: 9-12, 15-18, 21-25, 28-36, 39-40, 43-46, 49 and 52.
As noted in the R&R (ECF No. 70 at 20), White's court-appointed counsel did not transfer with him to the Western District of Virginia and thus he again became a pro se litigant.
The United States subsequently filed a Motion to Dismiss or Transfer (ECF No. 79) in the Western District of Virginia (W.D. Va. Case No. 7:19-cv-00531), arguing that the court was not the proper venue for these claims because, during a period of time when he was not incarcerated, White fled to Mexico in an attempt to avoid further sentences and incarceration and had expressed an intent never to return to Virginia. White was arrested in Mexico and extradited back to the United States in June of 2012.
The Virginia district court did not accept the argument that venue was improper in the Western District of Virginia. However, utilizing Federal Rule of Civil Procedure 21 and 28 U.S.C. § 1404(a), the court split the pending counts before it into three cases. The court transferred one portion of the litigation (Counts 37, 38, 41(b) and 42(b), concerning events at USP Canaan) to the Middle District of Pennsylvania, transferred a second part (Counts 47 and 48, about conduct at the Federal Transfer Center Oklahoma City (“FTC Oklahoma”)) to the Western District of Oklahoma, and transferred the present suit (consisting of Counts 41(a) and 42(a), regarding conduct at FCI Loretto) to the Western District of Pennsylvania. (ECF Nos. 86, 87 and 88.) The court then closed the case in the Western District of Virginia.
Both prior to and immediately after his incarceration at FCI Loretto, White was housed at USP Canaan in Wayne County, Pennsylvania, within the jurisdiction of the Middle District. See White v. United States, No. 3:20-cv-291 (M.D. Pa. filed Feb. 19, 2020), ECF No. 88. That case is ongoing, although only one claim remains, as discussed below.
On November 20, 2020, the court entered an order granting the United States' motion to dismiss that case (W.D. Okla. No. 5:20-cv-141). It is currently on appeal.
2. The Present Lawsuit
On February 19, 2020, the SAC was transferred to and docketed in this Court at Civil Action No. 3:20-28 (ECF No. 89). As noted above, this action is limited to the time frame during which White was incarcerated at FCI Loretto, that is, between January 9, 2015, and February 20, 2015. (SAC ¶¶ 63-64, 558-71, 572-84).
The United States filed a motion to dismiss (ECF No. 98) on July 29, 2020. With his response, White moved to reinstate Counts 41 and 42 as to the United States Marshal's Service (ECF No. 107). On November 9, 2020, an R&R was filed, recommending that the motion filed by the United States be denied, that White's motion be granted and that Counts 43 and 44 also be reinstated (ECF No. 111). On February 25, 2021, Judge Haines filed a Memorandum and Order (ECF No. 113) that adopted the R&R. Subsequently, however, White filed a motion to voluntarily dismiss Counts 43 and 44 (ECF No. 116), which was granted by Judge Haines (ECF No. 117). Thus, Counts 43 and 44 are no longer part of the case.
B. Relevant Facts
1. Events Prior to White's Incarceration at FCI Loretto
White states that following his arrest in Virginia on October 17, 2008, he was transferred on November 7, 2008, to the Metropolitan Correctional Center Chicago (“MCC Chicago”), where he was held in the custody of the BOP. He states that, for several days, he was subjected to temperatures as low as -20° Fahrenheit, without adequate clothing, bedding or protection. From November 28 to 29, 2008, he was housed in a cell flooded with human feces and overrun by cockroaches. (Plaintiff's Statement of Material Facts (“PSMF”) ¶¶ 8-9.) He further states that he did not receive a seven-day review hearing that he could attend and that he was never interviewed by a psychologist. (Id. ¶ 10.)
ECF No. 146. White's statement of facts includes a number of references to events and claims that were previously severed and are not at issue in this case. Nevertheless, they are included herein for purpose of background regarding what White alleges occurred at other prisons. As discussed herein, these facts do not support his claims related to his incarceration at FCI Loretto.
A federal regulation provides that inmates placed in SHUs will have their status reviewed after three days, seven days and thirty days and that they can attend the seven and thirty-day hearings. 28 C.F.R. § 541.26. Another regulation states that: “After every 30 calendar days of continuous placement in either administrative detention or disciplinary segregation status, mental health staff will examine you, including a personal interview. Emergency mental health care is always available.” 28 C.F.R. § 541.32(b).
White states that, on September 3, 2010, he was placed in the SHU at FCI Beckley in West Virginia, in a dark 9' x 15' cell with a bunk bed, a shower and a concrete stool and writing table. Many of the showers had open drains where flies proliferated. (Id. ¶ 13.) On September 21, 2010, he was transferred to disciplinary segregation, where he remained until October 5, 2010, and he began having delusional beliefs. (Id. ¶ 14.) He states that he developed full psychosis, stopped having sleep-wake cycles and was in a constant waking dream state. (Id. ¶ 15.) Between September 3 and December 9, 2010, he never received a seven-day review and was not interviewed by a psychologist. (Id. ¶ 16.)
On December 17, 2010, he was transferred back to MCC Chicago, and then placed in the SHU. For one week at some point in January 2011, the SHU Lieutenant seized his mattress, leaving him to sleep on bare steel. (Id. ¶ 18.) White states that, sometime between February 17 and 28, 2011, he developed catatonia, such that he sat staring at the wall for extended periods. This culminated in a cell extraction on March 9, 2011. He was told that his psychotic symptoms were the result of a reaction to an allergy medication. (Id. ¶ 19.) He did not receive a seven-day SHU review that he could attend and the only time he ever saw a psychologist was during the cell extraction on March 9, 2011. (Id. ¶ 20.)
From May 14, 2014 to December 23, 2014, White was held at the John E. Polk Correctional Facility (“JEPCF”) in Seminole County, Florida. He states that, on May 20, 2014, hours after he refused a plea bargain in a criminal case, he was transferred to the “ISO” unit of the facility, where he was subjected to a 6000 lumen light (as bright as a car's high beams) for twenty-four hours a day until late August, when it was reduced to twenty hours a day, in a small, windowless room painted glossy white. He became unable to sleep for days at a time, sleeping an average of 72 minutes a day. This caused him to be unable to eat or drink and he eventually collapsed from dehydration and was left to choke and convulse on the floor of the cell for twelve hours. (Id. ¶¶ 21-23.) He indicates that, on November 30, 2014, just after his sentencing, he was transferred to the “B-wing,” which he calls “a less abusive solitary confinement unit.” (Id. ¶ 25.)
The JEPCF is not a federal prison and thus his incarceration at this facility is not listed on the record of his housing in federal institutions submitted by the United States (ECF No. 142 Ex. B Attach. 1).
As reflected in the public record of White's criminal case, United States v. White, No. 6:13-cr-304-JA-GJK, in the United States District Court for the Middle District of Florida, White was sentenced to 210 months of incarceration on November 21, 2014, following his conviction on numerous counts. (Id. ECF No. 87). His convictions and sentence were affirmed by the Court of Appeals for the Eleventh Circuit on June 30, 2016 (ECF No. 142).
On December 23, 2014, White was transported from the JEPCF to FTC Oklahoma. He states that, during the transport, he was placed in black box restraints, allegedly because of a “gang affiliation,” although he denies being in a gang. (Id. ¶ 27.) He was placed in the SHU from December 23 to 29, 2014. He states that he was “still delirious from my experience at the JEPCF.” He never saw a member of the psychology staff. He states that he was placed in the SHU because they believed he was a “validated gang member” and a “sovereign citizen,” but neither of these accusations was true. (Id. ¶¶ 28-29.)
On December 29, 2014, White was transported from FTC Oklahoma to USP Canaan in black box restraints. He represents that he was not locked down at USP Canaan from December 29, 2014, to January 9, 2015. When he was transported to FCI Loretto on January 9, 2015, he was not placed in black box restraints. (Id. ¶ 30.) The USMS did not take part in White's transport to or from FCI Loretto. Rather, both transports were handled by the BOP. (Defendant's Statement of Material Facts (“DSMF”) ¶¶ 2-13, 27) (ECF No. 141.) (see also Plaintiff's Response to Defendant's Statement of Material Facts (“PRDSMF”) ¶ 1, 13.) (ECF No. 151.)
White's paragraphs do not correspond to the United States' numbered paragraphs.
2. White's Status at FCI Loretto
FCI Loretto is a low-security facility. The United States asserts that, from January 9, 2015, through February 20, 2015, White was a “holdover” inmate at FCI Loretto pending reclassification and redesignation as a medium security inmate to a medium security institution after returning from a federal writ with a newly imposed 210-month federal term. A holdover inmate is securely separated from the general inmate population and celled with other similarly situated inmates. (DSMF ¶¶ 14-15.)
White contends that, although the documents cited by the United States refer to him as “pending reclassification,” they do not indicate that he was a “holdover inmate” or that he was a medium security inmate (although he admits that FCI Loretto is a low-security institution). In his cross-motion for summary judgment, however, White has filed another declaration (“White MSJ Decl.”) which attaches and incorporates a declaration he filed in his lawsuit in the Middle District. (ECF No 146-1 ¶ 6) (incorporating ECF No. 146-2) (“White Decl. M.D. Pa.”). In that declaration, White stated: “Between January 9 and February 20, 2015, I was redesignated a ‘medium' security inmate due to sentence length and placed in the A01 unit upon arrival at USP-Canaan.” (White Decl. M.D. Pa. ¶ 41) (emphasis supplied.) Thus, by his own admission, White was designated a medium security inmate because of the length of his sentence.
While White claims that he is “contesting the methods or circumstances of preparation” of the relevant documents (ECF No. 150 at 5), he provides no basis for this challenge other than noting that the declaration by Jonathan Kerr (ECF No. 142 Ex. B), a “Senior CLC Attorney for the Federal Bureau of Prisons Northeast Regional Office,” does not state that he has personal knowledge of White's status. (PRDSMF ¶¶ 2-5.) Mr. Kerr's declaration states that he is the custodian of the relevant documents, that they were created at or near the time of the occurrence and that they were made by the BOP as a regular practice. (Kerr Decl. ¶¶ 3-4.) See F.R.E. 803(6), 902(11). Thus, it is clear that he is not testifying as to the information in the documents from his personal knowledge. As explained herein, the evidence of record confirms that White was a holdover medium security inmate.
White was housed at USP Canaan from December 29, 2014, to January 9, 2015, was transferred to FCI Loretto where he remained from January 9, 2015 to February 20, 2015, and was then transferred back to USP Canaan, where he remained from February 20, 2015, to March 3, 2015. (ECF No. 142 Ex. B Attach. 1 at 4.) Thus, White, who was classified as a medium security inmate, was pending transfer from FCI Loretto, a low-security facility, to USP Canaan.This means that he was in “holdover” status. See 28 C.F.R. § 541.23(b) (federal inmates are placed in holdover status “during transfer to a designated institution or other destination.”) See also SAC ¶ 64 (alleging that White was told he had been sent to FCI Loretto “by mistake” and that he was returned to USP Canaan six weeks later).
White contends that he was “pending transfer” back to JEPCF for a restitution hearing in a criminal case. (PRDSMF ¶ 2.) However, the gap in his housing records to which he refers did not occur until March 3, 2015. It is undisputed that, from February 20 to March 3, 2015, he was at USP Canaan.
The United States indicates that, to the extent practical, holdover inmates are provided with the same general privileges as inmates in a general population unit, including but not limited to out of cell time in the unit, the opportunity to exercise five hours per week outside of their quarters, personal hygiene items, the opportunity to shower and shave, nutritionally adequate meals, appropriate bedding and clothing, and a reasonable amount of personal property and commissary access. The United States avers that White availed himself of these general privileges and opportunities, exercising and showering regularly and had daily interactions with a staff Physician Assistant. Health Services staff made daily rounds to provide any necessary medical care and emergency medical and mental health care was available 24 hours per day, 7 days per week. (DSMF ¶¶ 16-17.)
White's declaration states that he was not housed with similarly situated inmates, but was housed with three different inmates, all of whom were low-security inmates under investigation for disciplinary infractions. None were pending reclassification or transfer. (White Decl. ¶ 3) (ECF No. 152.) He does not explain the significance of this observation, however. He also represents that, unlike prisoners in the general population:
I was kept in an approximately 9' x 15' cell, usually with another inmate, with almost no opportunity for movement or access to programming or services. I was permitted almost no access to personal property or commissary. I received “rec” in an approximately 20' x 30' rec yard one hour a day five days a week. I had no access to staff or their services unless they walked by my door and agreed to speak to me. Further, staff are not readily identifiable and often refused requests to identify themselves.(Id. ¶ 4.) He further states that, because he did not have access to these privileges, he could not take advantage of them. (Id. ¶ 5.) He also admits, however, that he was housed with other inmates and was not in solitary confinement with little social interaction or sensory stimulus for lengthy periods of time. Rather, his treatment was consistent with the treatment of holdover inmates in a SHU as described in the regulation.
3. Conditions at FCI Loretto
According to the United States, upon White's arrival at FCI Loretto, he was comprehensively evaluated at intake screening by a staff registered nurse and a psychologist, Dr. Munneke. He denied any physical or mental health issues and none were identified during the encounters. He was instructed on how to obtain medical, dental, and mental health care by both providers. White was offered but declined interest in individual or group treatment and was educated on the various ways to obtain mental health services. On January 14, 2015, White was evaluated by a staff Physician Assistant for his history and physical examination and expressed no medical or mental health concerns. He was again evaluated on January 16, 2015, by a psychologist as part of routine SHU reviews and reported no mental health issues associated with his holdover Administrative Detention status in the SHU. There was no evidence to suggest that he had any mental health issues. White again declined any interest in individual or group therapy. (DSMF ¶¶ 18-23.)
White asserts that “The absence of a declaration by Dr. Munneke supporting his entry in the Psychology Data System persuades me that I do not remember speaking to Dr. Munneke [on] January 9, 2015, because he did not interview me that day.” (White Decl. ¶ 6) (ECF No. 152.) The absence of a declaration is not dispositive as to whether the interview took place, nor is the fact that White does not remember the interview. The Health Screens White received on January 9, January 14 and February 20 are part of the record. (ECF No. 142 Ex. B Attach. 2.)
The United States asserts that, on February 3, 2015, White was evaluated by a psychologist as part of routine SHU reviews and, similarly, reported no mental health issues and there was no evidence to suggest any mental health issue. He again declined interest in additional mental health services.
On February 20, 2015, upon his arrival at USP Canaan, White was comprehensively evaluated at intake screening by a staff Emergency Medical Technician. He denied experiencing any distress or injury and did not complain about any issue associated with his stay as a holdover inmate at FCI Loretto and none were identified. (DSMF ¶¶ 24-26.)
White denies these statements. (PRDSMF ¶¶ 6-12.) He claims not to remember meeting with Dr. Munneke on January 9, 2015, although he recalls being interviewed by a number of people. He denies being told about and declining offers of mental health care or individual or group services. (White Decl. ¶ 7.) He claims that he did inform prison personnel of his “bad experiences at the JEPCF, of the fact that I was being improperly locked down in transit as a ‘sovereign citizen,' ‘neo-Nazi leader' and ‘gang member,' and of my concerns about continuing to be housed in SHU conditions.” FCI Loretto dismissed his concerns, he contends, but he followed up by submitting two Inmate Requests to Staff the same day. (PSMF ¶ 31; White MSJ Decl. ¶¶ 10-11; See ECF No. 146 Exs. H(n) (i, ii.))
He does not deny the accuracy of the Health Screens submitted into the record, other than contending that Mr. Kerr does not have personal knowledge of what occurred.
In these requests, White did not state that he was subjected to RES conditions, nor did he mention PTSD, state that he was experiencing emotional distress or that he needed to be seen by medical personnel for a physical or psychological injury. Rather, in the first document, he requested that the prison address his false designations as a “sovereign citizen” and “neo-Nazi leader” and in the second, he stated that he understood why he was placed in the SHU but requested an expedited process to place him in general population. (Defendant's Response to Plaintiff's Statement of Material Facts (“DRPSMF”) ¶ 31.)
ECF No. 155. In a reply brief, White responds to the United States' description of the requests by stating that “they are not the sole or even primary evidence as to what occurred at the intake interviews.” (ECF No. 157 at 4.) However, he then refers back to his own declaration, in which he asserted that he complained about being continually placed in the SHU as an alleged “sovereign citizen” and “gang member” and about his treatment at the JEPCF but was ignored and followed up by sending the two inmate requests. (White Decl. ¶¶ 10-11.)
White's first recollection of meeting Dr. Munneke was on January 16, 2015, but he contends that the “interview” consisted of a five-minute discussion through his cell door. He claims that Dr. Munneke did not ask him about how his SHU housing was affecting his mental health, nor did Dr. Munneke give him any information about psychological services or how to obtain them. (PSMF ¶ 33; White MSJ Decl. ¶ 12.)
White notes that he was provided with an exhibit (ECF No. 146 Ex. A(b)(ii)) that appears to reference a seven-day review but asserts that he had a right to attend this review but was not given a chance to do so. (PSMF ¶ 34.) He admits that Dr. Munneke filed paperwork stating that he conducted a SHU review on February 3, 2015, but White does not believe he did, or if he did, it was “little more than a walk by my door and say ‘hello.'” (Id. ¶ 35.) Finally, although a determination was made on February 17, 2015, that he should continue to be held in the SHU and is documented, White argues that there are “no records that a weekly SHU review meeting was conducted or that a specific 30-day SHU review was conducted.” (Id. ¶¶ 36-37.)
White claims that during his entire stay at FCI Loretto, he was “largely delirious with my head swimming from the effects of having been kept awake for six months at the JEPCF.” (Id. ¶ 38.) On January 14, 2015, he complained about a “current painful condition,” which was followed up by his request to have a ganglion cyst drained. (PRDSMF ¶ 9: White Decl. ¶ 8.) White asserts that he did not raise any mental health concerns on January 14, 2015, because Health Services staff would not respond to them but would refer his concerns to Psychology (White Decl. ¶ 10). Moreover, he claims that Dr. Munneke did not ask him about mental health issues on January 16 and did not offer him services (id. ¶ 11); that the absence of a declaration by Dr. Munneke “persuades me that I do not remember speaking to [him] on February 3, 2015, because the interview did not occur” and he was not offered services (id. ¶ 12); and that he was not asked about mental health issues when he arrived at USP Canaan on February 20, 2015 (id. ¶ 13).
This information is contained in the Health Services History & Physical dated January 14, 2015. (ECF No. 142 Ex. B Attach. 2 at 26, 28.)
Eric Ostrov, J.D., Ph.D., ABPP met with White several times between September 2015 and January 2016. (PSMF ¶ 39.) Dr. Ostrov issued a psychological evaluation of White on July 22, 2016, as a result of which he diagnosed White with PTSD. (DSMF ¶ 28.) Dr. Ostrov related the PTSD to traumatic experiences White was subjected to while at the JEPCF in Florida and MCC Chicago. (ECF No. 142 Ex. C at 23-24.) He noted that two previous psychological evaluations-one by Dr. Conrad Daum in 2010 and the other by Dr. James Corcoran in 2012- indicated that White had no major psychiatric illness prior to his incarceration at the JEPCF and MCC Chicago. (Id. at 24.) Notably, Dr. Ostrov does not mention White's six-week incarceration at FCI Loretto or relate White's PTSD to any experiences there.
White states that the date was February 6, 2016 (PSMF ¶ 39; White MSJ Decl. ¶ 15), but the actual report (ECF No. 142 Ex. C) indicates that it was issued on July 22, 2016.
White contends that:
USP Marion staff, including Munneke (who transferred to USP Marion from FCI Loretto) spent five years falsifying my medical records and ignoring my complaints of PTSD symptoms, including confusion and violent episodes. This rose in June 2021 to the outright fabrication of records and lying to the U.S. Attorney's Office, as winning my PTSD litigation became more important than providing me mental healthcare. And, after five and a half years, I had a violent episode at a time USP Marion was not locked down and myself and another inmate were hurt. I am now in the SHU trying to find some way to get my PTSD treated.(PSMF ¶ 40.) Finally, he contends that certain records relating to his conditions of confinement at MCC Chicago in 2008 (extreme cold) and in 2011 (his catatonic state and cell extraction) were destroyed by the BOP despite the requirement that all such records be kept. (Id. ¶¶ 41-42.)
In his reply brief, White states that he suffered a stress-induced episode at USP Marion on November 17, 2021, in which he beat himself, after which he was examined and prescribed Remeron, which significantly reduced his PTSD symptoms. (ECF No. 157 at 5.)
C. Discussion
1. Standard of Review
The Federal Rules of Civil Procedure provide that: “The court shall grant summary judgment if the movant shows that 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). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court of Appeals has held that “where the movant bears the burden of proof at trial and the motion does not establish the absence of a genuine factual issue, the district court should deny summary judgment even if no opposing evidentiary matter is presented.” National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992).
In following this directive, a court must take the facts in the light most favorable to the non-moving party and must draw all reasonable inferences and resolve all doubts in that party's favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005); Doe v. County of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).
2. Defendant's Motion for Summary Judgment
The United States argues that it is entitled to judgment in its favor for several reasons. First, contrary to the allegations in the Second Amended Complaint, White was not transported to and from FCI Loretto in black box restraints and the relevant records conclusively establish that he was in the custody of the BOP, not the United States Marshals Service, during these transports. Thus, White cannot maintain a claim for IIED or NIED based on his transport to or from FCI Loretto. Further, the United States argues, White was not placed in solitary confinement nor was he subjected to “RES” conditions while at FCI Loretto. Finally, the expert reports which White references do not connect his six-week incarceration at FCI Loretto to causing, contributing to, or aggravating his then as-yet undiagnosed PTSD. The United States also notes that White has failed to submit any medical testimony to support damages for emotional distress.
White concedes that he was not transported to and from FCI Loretto in black box restraints and that he is no longer asserting a claim of intentional infliction of emotional distress by the BOP or the marshals. Rather, he now claims that he was negligently housed in the SHU, where the conditions of his confinement aggravated his undiagnosed PTSD. (ECF No. 150 at 3.)
White attributes this allegation to an “error of counsel who prepared the Second Amended Complaint.” Notably, however, at no earlier point in this proceeding did White attempt to correct the record. Moreover, White also moved to reinstate claims against the United States Marshal's Service even though he now admits that it was not involved in his transport.
Relevant Regulations and Applicable Law
Federal law provides that:
The Bureau of Prisons, under the direction of the Attorney General, shall-
(1) have charge of the management and regulation of all Federal penal and
correctional institutions;
(2) provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise;
(3) provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States;18 U.S.C. § 4042(a). “The BOP must exercise ordinary diligence in keeping prisoners safe and free from harm.” Harris v. Fed. Bureau of Prisons, 779 Fed.Appx. 72, 74 (3d Cir. 2019).
Federal regulations state that inmates placed in the SHU should be reviewed on a three-day, seven-day and thirty-day basis, 28 C.F.R. § 541.26, and that their mental health should be assessed after thirty days, 28 C.F.R. § 541.32(b). See also BOP Policy Statement 270.10 (effective Aug. 1, 2011) (detailing objectives and policies of SHUs, including reasons for placement there), superseded by Policy Statement 5270.11 (effective Nov. 23, 2016) (same); Policy Statement 5310.17 (Psychological Services Manual section indicating that the “PSY ALERT assignment is applied to inmates with substantial mental health issues that require extra care when their housing is changed or they are transferred.”).
“However, failure to comply with a federal statute or regulation is not a sufficient basis, on its own, for an FTCA claim.” F.E.I. Co. v. United States, 409 F.Supp.3d 305, 319-20 (M.D. Pa. 2019) (citing Cecile Indus., Inc. v. United States, 793 F.2d 97, 99 (3d Cir. 1986)). Indeed, the jurisdictional statute provides that the United States may only be held liable “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Thus, in assessing a claim under the FTCA, the court applies the law of the state in which the act or omission occurred. 28 U.S.C. §§ 1346(b)(1), 2674. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000). Hence, Pennsylvania law applies to the claims in this case. See DeJesus v. U.S. Dep't of Veterans Affairs, 479 F.3d 271, 279 (3d Cir. 2007).
White concedes that the United States did not engage in any intentional conduct. As such, the only remaining claim is White's claim of negligent infliction of emotional distress.
Negligent Infliction of Emotional Distress Claim
The United States contends that White received appropriate reviews and declined psychological treatment or therapy. White disputes these assertions, contending that he was never offered such services. He also claims that his expert, Dr. Richard Samuels, has opined that the evaluations he received were “negligent.”
As the Pennsylvania Superior Court has explained, a cause of action for negligent infliction of emotional distress is limited to four scenarios:
(1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to a close relative.Toney v. Chester County Hosp., 961 A.2d 192, 197-98 (Pa. Super. 2008) (en banc) (citation omitted), aff'd by an equally divided court, 36 A.3d 83 (Pa. 2011). “In all cases, a Plaintiff who alleges negligent infliction of emotional distress must suffer immediate and substantial physical harm.” Doe v. Philadelphia Cmty. Health Alternatives AIDS Task Force, 745 A.2d 25, 28 (Pa. Super. 2000), aff'd mem., 767 A.2d 548 (Pa. 2001). White's claim is appropriately considered under the first scenario, that is, the fiduciary duty of the United States toward him.
Regarding the element of damages, “the general rule of law in Pennsylvania has been that ... a claimant may not recover damages for negligently inflicted emotional distress in the absence of a physical manifestation of the emotional distress allegedly suffered.” Houston v. Texaco, Inc., 538 A.2d 502, 504 (Pa. Super. 1988) (citations omitted). See also Armstrong v. Paoli Hosp., 633 A.2d 605, 609 (Pa. Super 1993); Love v. Cramer, 606 A.2d 1175, 1179 (Pa. Super. 1992) (physical manifestations of emotional suffering, i.e., depression, nightmares, stress, and anxiety, were sufficient to allege a claim of NIED). Finally, a plaintiff must demonstrate that his injuries were proximately caused by the actions he cites. Love, 606 A.2d at 1177.
As explained above, the BOP has a fiduciary duty to exercise ordinary diligence in keeping federal prisoners safe and free from harm. 18 U.S.C. § 4042(a). The United States contends that it met its responsibilities by providing White with interviews and examinations and the opportunity to participate in psychological services that he declined. Further, it provided him with appropriate services that are consistent with the treatment of holdover inmates in a SHU.
White first asserts that he was not provided with psychological services as outlined in federal regulations. Notably, while he can rely upon his own declaration to dispute the United States' version of what occurred, see Pinson v. United States, 826 Fed.Appx. 237, 242-43 (3d Cir. 2020), he does not dispute that he received physical examinations as the United States has documented. Rather, he contends that he did not receive reviews of his SHU placement at hearings he could attend as required by federal regulations.
However, as discussed above, the failure to comply with federal regulations does not render the United States liable under the FTCA. Pennsylvania law, which is applicable here, does not require three, seven or thirty-day reviews of inmates placed in similar types of confinement.Thus, even if White's version of the evaluations at FCI Loretto is accepted as true, it does not support his NIED claim. He also acknowledges that despite the fact that he does not recall Dr. Munneke's first examination, he received mental examinations and evaluations during his confinement at FCI Loretto, even if these evaluations were not as detailed as he and Dr. Samuels believe they should have been.
While White acknowledges that the United States does not raise a discretionary function defense under 28 U.S.C. § 2680(a), he states that “some of the government's evidence and argument, however, sounds like a discretionary function defense, so I briefly address it.” (ECF No. 150 at 7.) As the United States did not raise the defense, it will not be addressed here.
White also admits that he was not placed in solitary confinement and was allowed some privileges (out-of-cell time and the opportunity to exercise five times a week), albeit not as much as prisoners in general population. In his summary judgment declaration, White asserts that, during his incarceration at FCI Loretto, he “basically lay in bed and listened to the radio while feeling delirious and trying to recover from my injuries at the JEPCF. I did also converse with my cellmates, go to rec, and write some letters, but mostly I lay around. At that time, my head was basically swimming.” (White MSJ Decl. ¶ 14.) However, the referenced injuries allegedly occurred at the JEPCF, not FCI Loretto. Moreover, White references communications to staff at USP Marion in 2016, reporting that he was confused and wanted diagnosis and treatment. (Id. ¶ 16.) But these communications occurred long after he left FCI Loretto and have not been connected to his six-week incarceration at FCI Loretto. Thus, he has not demonstrated any proximate cause between the conditions and his injuries.
White states that he had “almost no ... access to personal property or commissary” and “no access to staff or their services unless they walked by my door and agreed to speak to me.” (White Decl. ¶ 4.) However, he has not specifically addressed or denied that he had personal hygiene items, the opportunity to shower and shave, nutritionally adequate meals, or appropriate bedding and clothing, as the United States contends and the record supports.
The United States and White both moved for summary judgment in White's pending case in the Middle District of Pennsylvania, White submitted two reports from Dr. Samuels, neither of which discussed White's incarceration at USP Canaan. The court granted the United States' motion as to White's IIED claims and denied White's motion. With respect to the NIED claim, Chief Judge Brann stated as follows:
The problem for White's negligence claim, however, is causation-specifically, proximate cause. Nothing in the record establishes that White's conditions of confinement at USP Canaan were a “substantial factor” in bringing about his PTSD. Dr. Samuels' 2019 report never mentions White's nine-day incarceration
at USP Canaan; rather, the report links White's PTSD to his earlier-and much more extreme-conditions of confinement in Florida and Chicago.White v. United States, 2021 WL 4438246, at *5 (M.D. Pa. Sept. 28, 2021) (footnotes omitted). Ultimately, the court did not resolve the motion with respect to this claim, however, because White moved for an extension of time in which to submit a supplemental report from Dr. Samuels.
In this case, White has submitted a supplemental report by Dr. Samuels (ECF No. 152 Ex. 1). In his report, Dr. Samuels does not indicate that White suffered a physical or emotional injury that was proximately caused as a result of RES conditions, SHU syndrome or the conditions of confinement at FCI Loretto. Rather, Dr. Samuels cites conditions to which White was subjected at the JEPCF in Florida, and his subsequent confinements at FTC Oklahoma and USP Canaan.
White has submitted four reports from Dr. Samuels, dated August 14, 2019, May 20, 2021, October 5, 2021, and November 11, 2021. (ECF No. 156 Ex. A.) None of them discuss the conditions of White's incarceration at FCI Loretto. Dr. Samuels suggests that this Court “concluded” that certain conditions existed because it denied the United States' motion to dismiss. This is an erroneous interpretation of the standard applied to resolving a motion to dismiss, in which the allegations of the complaint must be accepted as true. A full record is now before the Court.
Dr. Samuels does contend that the medical staff at FCI Loretto failed to evaluate and treat Plaintiff's PTSD (which was not diagnosed until July 22, 2016). Specifically, Dr. Samuels states that: “Had complete and medically acceptable psychological interviews been performed, his PTSD would have been diagnosed. He would not have been subjected to these conditions of [segregation] and other conditions at FCI-Loretto, which likely caused a worsening of his PTSD symptoms.” (Id. at 2.) He further states that:
Dr. Samuel's supposition that White would not have been placed in the SHU if his PTSD was diagnosed is not supported by the record. White was placed in the SHU because of his security status. No evidence has been provided to support a conclusion that if he been diagnosed with PTSD, he would have received a different placement.
Mr. White specifically referenced Dr. Munneke's three intake interviews. For example, one consisted of a five-minute “at the door (of his cell)” conversation, resulting in BOP notes indicating that Mr. White had no mental health issues. As a diagnostic interview, a five-minute talk at the door of a cell falls way short of typical standards for such a diagnostic interview. As an example, this examiner's evaluation of Mr. White took between six to eight hours. While Mr. White expected that Dr. Munneke's assessment would lead to PTSD treatment, a different psychologist only recently provided him with a PTSD workbook, usually given to those in group therapy for PTSD. However, no PTSD group therapy was available at the facility, nor was Mr. White provided any specific treatment for the disorder. It appears that the typical standard of care one would expect for treating PTSD was negligent.(Id. at 2-3.) See also id. at 4 (summarizing his conclusions that three five-minute “at the door psychological interviews” did not meet typical professional standards and appear to be an example of negligence, that the therapy provided to him fell far short of acceptable data-driven interventions for treating PTSD and that “the disappearance or misfiling of his therapy notes resulted in him being exposed to prison conditions contraindicated for a person diagnosed with PTSD.”)
White argues that because that Dr. Samuels opines that Dr. Munneke's entries regarding his treatment of White were “negligently prepared,” these entries may not be considered as part of the record. He provides no support for this contention. While White may dispute their accuracy, they were properly authenticated and are part of the record.
Dr. Samuels' opinions in this respect are off the mark. White's claim in this case is not that the United States is liable because his PTSD was undiagnosed at FCI Loretto or that the psychological evaluations and therapy provided did not meet acceptable professional standards. Any such claim would be one for medical malpractice, not negligent infliction of emotional distress. See Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 536, 538 (M.D. Pa. 2002) (allowing amendment of complaint alleging malpractice to add a separate claim of NIED). See also Halliday v. Beltz, 514 A.2d 906, 907-08 & n.1 (Pa. Super. 1986) (plaintiffs moved to amend complaint originally alleging malpractice to also allege a claim of NIED, which court referred to as “a separate cause of recovery.”) Rather, White's claim is that the United States negligently inflicted emotional distress by subjecting him to RES conditions which exacerbated his (presumably then-existing but not yet diagnosed) PTSD. Simply put, Dr. Samuels' reports do not address the claim that White has actually asserted.
White has not pleaded a medical malpractice claim. Even if he had done so, under Pennsylvania law, a plaintiff alleging medical malpractice must file a certificate of merit within sixty days. Pa. R. Civ. P. 1042.3(a). This requirement is substantive and applies in federal courts applying Pennsylvania law. See Liggon-Redding v. Est. of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011). White has never produced a certificate of merit and Dr. Samuels' supplemental report was filed 21 months after White's action was commenced in this Court.
To recover for negligent infliction of emotional distress under the fiduciary duty theory, “a plaintiff must establish the elements of a negligence claim, ‘i.e., that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage.'” Toney, 961 A.2d at 198 (quoting Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863, 868 (Pa. Super. 2000)).
While White satisfies the first element (the existence of a duty), he has not come forward with evidence that creates a breach of that duty. Although he disputes the adequacy of the psychological evaluations he received, it is uncontroverted that he did receive examinations and evaluations and had not been diagnosed with PTSD as of his transfer to FCI Loretto.
Moreover, the evidence related to the conditions of his incarceration at FCI Loretto fail to support his claim. White's treatment during his six-week stay at FCI Loretto was consistent with the treatment of holdover inmates in a SHU. Holdover inmates are provided with the same general privileges as inmates in a general population unit, including but not limited to, out of cell time in the unit, the opportunity to exercise five hours per week outside of their quarters, personal hygiene items, the opportunity to shower and shave, nutritionally adequate meals, appropriate bedding and clothing, and a reasonable amount of personal property and commissary access. White availed himself of these general privileges and exercising and showering regularly and had daily interactions with a staff physician's assistant.
Indeed, White admits that he was not subject to RES conditions or placed in solitary confinement. While he complains that he was not housed with similarly situated inmates, he fails to provide any basis to support a claim of negligent infliction of emotional distress based on this fact. While he also references the size of his cell, the limitations of his recreation time and availability of other services, there is no evidence that these conditions were different than those offered to other holdover inmates, were unsafe or punitive, or that the United States failed to exercise ordinary diligence in keeping him safe and free from harm.
Finally, White also suggests that he was “negligently” placed in the SHU at FCI Loretto, although the SAC does not include any such allegation. As explained above, it is undisputed that he was reclassified and redesignated as a medium security inmate based upon the 210-month sentence he received. Because FCI Loretto is a low-security institution, federal regulations require that inmates in medium security status must be placed in the SHU until they can be transferred to an appropriate facility, as he was six weeks later. Thus, even if White had raised such a claim, his contention that he was negligently placed in the SHU is refuted by the uncontroverted record.
In summary, the evidence of record does not support White's claim of negligent infliction of emotional distress. Therefore, the United States' motion for summary judgment should be granted.
3. White's Motion for Summary Judgment
In his motion for summary judgment, White asserts that he was negligently placed in the SHU and was subjected to conditions there that aggravated his PTSD. For all of the reasons explained above with respect to the motion for summary judgment of the United States, White is not entitled to summary judgment.
White further argues that the BOP failed to keep or destroyed his records in violation of the Privacy Act, 5 U.S.C. § 552a(e)(5). (ECF No. 145 at 7) and that these actions prevented staff at FCI Loretto from fully understanding his condition and led to him being improperly placed in the SHU. He further claims that the BOP failed to put a “PSY ALERT” notification on his file. However, neither claim is asserted in the Second Amended Complaint and as such, will not be considered.
Dr. Samuels repeats this claim in his supplemental report. (ECF No. 152 Ex 1 at 2.)
At any rate, even if FCI Loretto had been provided with his full records and the PSY ALERT notification had been placed on his file, there is no factual basis offered to support a conclusion that he would have been diagnosed with PTSD or that his placement at the prison would have been different.
III. Conclusion
For the reasons explained herein, it is recommended that Defendant's motion for summary judgment be granted and that Plaintiff's motion for summary judgment be denied.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by May 23, 2022. Any party opposing the objections shall file a response by June 6, 2022. Failure to file timely objections will waive the right of appeal.