William Thrower v. United States ( 2013 )


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  • CLD-227                                                      NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 12-4386
    ___________
    WILLIAM THROWER,
    Appellant
    v.
    UNITED STATES OF AMERICA; BUREAU OF PRISONS;
    WARDEN USP MCCREARY; WARDEN USP LEWISBURG;
    EMS MEDICAL TEAM; U.S. BUREAU OF PRISONS
    ____________________________________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Civil No. 1:11-cv-01663)
    District Judge: Honorable Christopher C. Conner
    ____________________________________
    Submitted for Possible Dismissal Pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B)
    or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
    May 2, 2013
    Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges
    (Opinion filed: June 3, 2013)
    _________
    OPINION
    _________
    PER CURIAM
    William Thrower, a federal inmate, appeals from the District Court‟s orders
    partially granting the defendants‟ motion for summary judgment, granting their motion to
    dismiss, and denying his motion for reconsideration. There being no substantial question
    presented on appeal, we will deny Thrower‟s motion to summarily vacate and will
    summarily affirm the District Court‟s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
    I.
    On April 15, 2009, Thrower was transferred from USP McCreary to the Special
    Management Unit (“SMU”) at USP Lewisburg, where he was placed in a cell with
    another inmate. Two days later, prison staff observed Thrower sitting on the floor of the
    cell holding his head in his hands. At that time, Thrower‟s cellmate started screaming for
    staff to remove Thrower from the cell. Before staff restrained the cellmate, he kicked and
    kneed Thrower in the head and face. Following the assault, prison medical personnel
    completed a rapid trauma examination. Both medical personnel and the responding EMS
    unit unsuccessfully attempted to stabilize Thrower‟s respiratory rate. Thrower was
    transported to the local hospital for emergency surgery and remained there for several
    weeks to recover.
    In July 2011, Thrower filed his complaint pursuant to Bivens v. Six Unknown
    Named Agents of the Fed. Bur. of Narcotics, 
    403 U.S. 388
     (1971), and the Federal Tort
    Claims Act (“FTCA”), 
    28 U.S.C. § 1346
    (b).1 The District Court subsequently granted
    1
    Thrower initially filed his complaint in the United States District Court for the Western
    District of Missouri, which transferred the action to the District Court. Shortly after
    transfer, the District Court severed Thrower‟s claims involving individuals and events at
    USP McCreary and transferred them to the United States District Court for the Eastern
    District of Kentucky.
    2
    the defendants‟ motion for summary judgment with respect to Thrower‟s Bivens claim
    and his FTCA negligent medical care claim and granted their motion to dismiss as to
    Thrower‟s FTCA negligent failure to protect claim. Thrower then filed a motion for
    reconsideration, which the District Court denied. This appeal followed.
    II.
    We have jurisdiction over the District Court‟s orders. 
    28 U.S.C. § 1291
    . We
    exercise plenary review over the District Court‟s partial grant of summary judgment and
    dismissal of Thrower‟s FTCA negligent failure to protect claim. See Giles v. Kearney,
    
    571 F.3d 318
    , 322 (3d Cir. 2009); Allah v. Seiverling, 
    229 F.3d 220
    , 223 (3d Cir. 2000).
    To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
    accepted as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft v.
    Iqbal, 
    556 U.S. 662
    , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570
    (2007)). Summary judgment is appropriate only when 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). We review the denial of a motion for reconsideration for
    abuse of discretion. See Lazaridis v. Wehmer, 
    591 F.3d 666
    , 669 (3d Cir. 2010) (per
    curiam).
    III.
    In his Bivens action, Thrower alleges that officials at USP Lewisburg failed to
    protect him by placing him in a cell with a dangerous cellmate. The Prison Litigation
    3
    Reform Act (“PLRA”) prohibits an inmate from bringing a civil rights suit alleging
    specific acts of unconstitutional conduct by prison officials “until such administrative
    remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This requirement
    applies to federal prisoners, like Thrower, seeking relief through a Bivens action. See
    Nyhuis v. Reno, 
    204 F.3d 65
    , 69 (3d Cir. 2000).
    The District Court properly dismissed Thrower‟s Bivens claim for failure to
    exhaust. The summary judgment record reflects that none of Thrower‟s administrative
    grievances have alleged that staff failed to protect him by placing him with a dangerous
    cellmate.2 While administrative remedies might be rendered unavailable when “prison
    officials prevent a prisoner from „utiliz[ing]‟” them, Miller v. Norris, 
    247 F.3d 736
    , 740
    (8th Cir. 2001), nothing in the record suggests that officials did that here. Furthermore,
    Thrower‟s assertion that he has now exhausted his remedies is irrelevant, as exhaustion
    must be completed before suit is filed. See Ahmed v. Dragovich, 
    297 F.3d 201
    , 209 &
    n.9 (3d Cir. 2002).
    The complaint also alleged two claims under the FTCA, one for negligent failure
    to protect and one for negligent medical care. Thrower filed two Administrative Tort
    Claims regarding the assault by his cellmate and prison officials‟ failure to protect him
    from the incident. The response Thrower received explicitly states that he did not present
    2
    The Bureau of Prisons‟ three-step administrative remedy program requires inmates to
    initiate a grievance by completing a BP-9 form and submitting it to the staff member
    designated to receive such grievances. See 
    28 C.F.R. § 542.14
    (a), (c)(4).
    4
    any claims regarding the medical care he received after the assault, and Thrower did not
    submit any evidence to refute this. Accordingly, the District Court properly granted
    summary judgment on his negligent medical care claim, as the FTCA requires that a
    plaintiff present a claim to the appropriate federal agency and receive a written denial
    from the agency.3 
    28 U.S.C. § 2675
    (a); see also White-Squire v. U.S. Postal Serv., 
    592 F.3d 453
    , 457 (3d Cir. 2010).
    The District Court granted the defendants‟ motion to dismiss Thrower‟s FTCA
    claim that officials were negligent in failing to protect him from the assault, determining
    that it was barred by the discretionary function exception to the FTCA‟s waiver of
    sovereign immunity.4 We agree. While the BOP‟s conduct at issue is governed by a
    federal statute requiring the BOP to provide for the “protection” and “safekeeping” of
    inmates, see 
    18 U.S.C. § 4042
    (a)(2), the statute leaves the implementation of these duties
    to BOP officials‟ discretion. See Mitchell v. United States, 
    225 F.3d 361
    , 363 (3d Cir.
    2000); Cohen v. United States, 
    151 F.3d 1338
    , 1342 (11th Cir. 1998) (explaining that
    3
    The record contains two Standard Form 95s that Thrower submitted to the BOP, as well
    as the BOP‟s regional counsel‟s responses denying his claims. Accordingly, he
    exhausted his FTCA claim that officials negligently failed to protect him. See 
    28 C.F.R. §§ 14.2
    (a), 14.9(a). Additionally, Thrower exhausted his FTCA failure to protect claim
    but did not exhaust his similar Bivens claim because exhaustion for Bivens purposes
    requires completion of the BOP‟s Administrative Remedy Program. Inmates wishing to
    initiate this process must first attempt to resolve an issue informally and then submit a
    completed BP-9 form to the staff member designated to receive such grievances. See 
    28 C.F.R. §§ 542.13
    (a), 542.14(a), (c)(4). As noted above in the text, none of Thrower‟s
    administrative grievances have alleged that staff failed to protect him.
    5
    “even if § 4042 imposes on the BOP a general duty of care to safeguard prisoners, the
    BOP retains sufficient discretion in the means it may use to fulfill that duty to trigger the
    discretionary function exception”).
    Furthermore, a judgment as to the best way to protect prisoners from attack by
    others “is of the kind that the discretionary function exception was designed to shield.”
    Mitchell, 
    225 F.3d at 363
    ; see also Whitley v. Albers, 
    475 U.S. 312
    , 321-22 (1986)
    (prison officials have discretionary power over the safety of the institutions they operate).
    Indeed, courts have regularly held that federal prisoners‟ FTCA claims for injuries caused
    by fellow inmates are barred by the discretionary function exception. See Cohen, 
    151 F.3d at 1340-45
    ; Calderon v. United States, 
    123 F.3d 947
    , 950-51 (7th Cir. 1997).
    Accordingly, the District Court properly dismissed Thrower‟s FTCA claim alleging
    negligence in failing to protect him.
    Finally, the District Court did not abuse its discretion in denying Thrower‟s
    motion for reconsideration, as it did not identify any of the grounds required for
    reconsideration. Lazaridis, 
    591 F.3d at 669
    .
    4
    We exercise plenary review over the District Court‟s application of the discretionary
    function exception. See Mitchell v. United States, 
    225 F.3d 361
    , 362 (3d Cir. 2000).
    6
    IV.
    For the foregoing reasons, we deny Thrower‟s motion to summarily vacate and
    will summarily affirm the District Court‟s judgment. Murray v. Bledsoe, 
    650 F.3d 246
    ,
    248 (3d Cir. 2011) (per curiam); see also 3d Cir. L.A.R 27.4; I.O.P. 10.6.
    7