Browning v. Pennerton, 7:08-CV-88-KKC.
| Decision Date | 22 June 2009 |
| Docket Number | No. 7:08-CV-88-KKC.,7:08-CV-88-KKC. |
| Citation | 633 F.Supp.2d 415 |
| Parties | James Hollman BROWNING, Plaintiff v. L.T. PENNERTON, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
James Holman Browning, Jr., Tucson, AZ, pro se.
Marianna Jackson Clay, U.S. Attorney's Office, Lexington, KY, for Defendants.
Currently before the Court for consideration are the following pleadings:
(1) The "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" [Record No. 34] (the "Motion to Dismiss/ Summary Judgment"), filed by counsel for various federal defendants, all of whom were, at the time relevant to this action, officials at the United States Penitentiary-Big Sandy ("USP-Big Sandy")1;
(2) Pro se plaintiff James Hollman Browning's "Response" [Record Nos. 38 and 39] to the defendants' "Motion to Dismiss/Summary Judgment;"2
(3) The "Motion of Objection to Appeal to District Judge" [Record No. 41] filed by Plaintiff Browning;
(4) The defendants' "Response" [Record No. 43] to the "Plaintiff's Request for the B-3 Officer"
(5) The "Motion to File Amended Complaint and Add James Meade as Defendant" filed by Plaintiff James Hollman Browning [Record No. 44].
Plaintiff Browning claims that various federal prison official-defendants violated the Eighth Amendment of the United States by deliberately failing to heed his warning that another inmate was going to harm him. That inmate subsequently attacked Browning, who asserted an Eighth Amendment claim for alleged inadequate medical treatment for his injuries.
For the reasons set forth herein, the Court will deny the defendants' "Motion to Dismiss" on the Eighth Amendment issue of "failure to protect" as to Defendants Myron Batts, Timothy Fazenbaker, Benjamin Pennington and Officer Edwards. The Court will grant the "Motion to Dismiss" regarding the Eighth Amendment medical claims asserted against Defendants Myron Batts, Timothy Fazenbaker, Benjamin Pennington and Officer Edwards.
The Court will grant the "Motion to Dismiss" with respect to both of the Eighth Amendment "failure-to protect" and medical claims asserted against Defendants Suzanne Hastings and Bobby Gourdoze. The Court will deny the various motions filed by Browning, although his "Motion to File Amended Complaint" will be denied without prejudice to Browning renewing the motion and tendering an Amended Complaint.
Browning is currently confined in the United States Penitentiary located in Tucson, Arizona. On May 2, 2008, Browning filed this civil rights complaint, asserting claims under: (1) 28 U.S.C. § 1331, pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and (2) the Federal Tort Claims Act ("FTCA"), Title 28 U.S.C. §§ 1346(b), 2671-2680. The events about which the plaintiff complains occurred on December 11, 2006, while he was confined in USP-Big Sandy, located in Inez, Kentucky
Browning alleged that on that date, he was physically attacked by another inmate at USP-Big Sandy, whom the Court will refer to as "the Assailant Inmate." Browning alleged that the Assailant Inmate inflicted two puncture wounds that were so deep they reached into his lungs and barely missed hitting his spinal cord [See Record No. 7, p. 5].
Browning alleged that the day prior to the assault by the Assailant Inmate, he warned USP-Big Sandy Staff prison staff (, Defendants Fazenbaker and Batts) that the Assailant Inmate presented a dangerous threat to his (Browning's) safety [Id., p. 7]. He alleged that on December 10, 2006, he specifically asked Batts and Fazenbaker not to place the Assailant Inmate in his cell because he had a history of perpetrating violent acts on other inmates [Id].
Browning alleged that on the following day, December 11, 2006, he asked Defendant Edwards to lock him (Browning) in an activity room and count him there, instead of sending him to the cell with the Assailant Inmate.3 Browning claimed that the Assailant Inmate specifically threatened to injure him and that he had conveyed that threat to three of the named defendants [Id]. Browning alleged that on that date, the defendants failed to take proper action to remove him (Browning) from a known and protect him from an avoidable risk of physical injury.
Browning alleged that on December 11, 2006, during the "Mainline" lunch meal at the prison, he also advised Defendant Batts that he needed separation from the Assailant Inmate. Browning further alleged that on that date, he warned Defendants Batts and Fazenbaker that the Assailant Inmate was violent, had threatened him, and should have remained in the SHU. Browning claims that none of the defendants separated him from the Assailant Inmate.
Finally, Browning alleged that after his assault, USP-Big Sandy staff failed to adequately investigate alleged wrong-doing by staff members who had not protected him. He claims that he has made repeated attempts to lodge complaints and initiate inquiries about the prison staff's failure to protect him from foreseeable injury at the hands of the Assailant Inmate.
In his Complaint, Browning asserted Bivens claims based on the defendants' alleged deliberate disregard of his safety in violation of the Eighth Amendment of the United States Constitution. He also asserted a claim of negligent supervision under the FTCA and requested the appointment of counsel.
On October 8, 2008, the Court issued a Memorandum, Opinion and Order ("the October 8, 2008 Order"), in which it: (1) denied Browning's "Motion for Appointment of Counsel"; (2) dismissed Browning's FTCA claims without prejudice; (3) dismissed Browning official capacity Eighth Amendment claims against five of the named defendants, and (4) directed the Clerk of the Court to issue summonses for Defendants Pennington, Fazenbaker, Batts, Hastings, and Gourdoze, in their individual capacities [See Record No. 10].4
Browning sought reconsideration of the October 8, 2008 Order. On October 24, 2008, the Court issued a Memorandum, Opinion and Order ("the October 24, 2008 Order") [Record No. 15], amending the October 8, 3008 Order to reflect that "Mr. Edwards" was the sixth defendant named in this action [Id., p. 3]. The Court directed the Clerk to issue a summons for Edwards, in his individual capacity, and directed the U.S. Marshal's office to serve him [Id., pp. 3-4].5
The Court refused to reconsider the denial of appointment of counsel issue, again explaining that appointment of counsel in this pro se civil rights action was not warranted by either the law or the particular facts of the case [Id., p. 3]. The Court determined that allowing "additional time" in which to pursue official capacity Bivens claims against the defendants was not warranted, noting that under well established law, such claims could not succeed.
Browning asked the Court to compel the defendants to provide the prison's videotapes from December 11, 2006 [See Motion, Record No. 33]. The Court referred the discovery issue to Magistrate Judge Robert E. Wier [See Order, Record No. 35].
The defendants objected, arguing that the requested video-tape was irrelevant because there was no dispute that Browning was assaulted on December 11, 2006, only whether (or how adequately) Browning told prison staff prior to the incident that he was afraid of the Assailant Inmate, [Record No. 37]. The defendants argued that even if the video-tape existed, it would not have recorded Browning's alleged verbal statements warnings to the defendants.
Special Investigative Agent James Link stated in a sworn Declaration that by early 2009, the prison no longer retained the video footage at issue in its digital archives and recycled space. According to Link, the footage had been removed in the normal course of business after the SIA completed the investigation of the December 11, 2006, assault. The tape was destroyed long before Browning filed this action in May of 2008 or requested the video tape in early 2009 [See Link Declaration, Record No. 37-1].
On March 6, 2009 Magistrate Judge Wier denied Browning's motion to compel release of the video-tapes [See Order, Record No. 40]. The denial was based primarily upon the fact that the prison no longer had the video-tapes in its possession.
The defendants do not dispute that the Assailant Inmate attacked Browning on December 11, 2006. The defendants assert four reasons why they are not liable to the plaintiff for the assault. Each ground is set forth below.6
The defendants argue that Browning's Eighth Amendment claims are barred by the applicable statute of limitations. Further discussion of this defense is not necessary. Browning's documents reveal that he did, in fact, file this Bivens action in a timely manner.
The defendants argue that Browning has failed to state a either valid Eighth Amendment "failure-to-protect" claim or a valid Eighth Amendment medical claim. Five of the defendants filed sworn Declarations outlining their versions of the relevant events.
Defendants Fazenbaker, Batts, Hastings, Gourdoze, and Pennington state that if Browning or another prison employee had told them that Browning was afraid of the Assailant Inmate, they would have taken immediate steps either to further investigate the complaint, and/or, if warranted, to officially protect Browning and separate the two inmates [See Fazenbaker Decl., Record No....
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