Artis v. Petrovsky, 85-3067-CV-S-2.

• Decision Date: 01 April 1986
• Docket Number: No. 85-3067-CV-S-2.,85-3067-CV-S-2.
• Citation: 638 F. Supp. 51
• Parties: Freddie ARTIS, Plaintiff, v. Joseph S. PETROVSKY, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

638 F. Supp. 51

Freddie ARTIS, Plaintiff, v. Joseph S. PETROVSKY, et al., Defendants.

No. 85-3067-CV-S-2.

United States District Court, W.D. Missouri, S.D.

April 1, 1986.

Freddie Artis, plaintiff, pro se.

Vernon A. Poschel, Asst. U.S. Atty., Kansas City, Mo., for defendant.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

COLLINSON, Senior District Judge.

The plaintiff, a prisoner, formerly confined at the United States Medical Center for Federal Prisoners (MCFP) in Springfield, Missouri, commenced the instant action on June 15, 1984. An amended complaint was filed on January 25, 1985, against several Bureau of Prison employees and the United States of America. The federal employees were sued in both their individual and official capacities. The named defendants are employed in the following capacities:

Mr. Joseph S. Petrovsky Warden of MCFP Dr. Walter Cassidy Chief of Psychiatry, MCFP Ms. Mary Alice Conroy, Phd. Psychiatric Programs Administrator MCFP Mr. Joseph E. Baker, Jr. Correctional Counselor, MCFP Mr. Leon Horton Case Manager, MCFP Mr. Robert F. Harris Senior Officer, MCFP "Richard Roe" Correctional Officer, MCFP.

The complaint, as amended, seeks damages from the defendants individually under the eighth amendment to the United States Constitution and from the federal government under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680. On February 4, 1986, defendants filed a renewed motion to dismiss or, in the alternative, for summary judgment. Plaintiff filed his suggestions in opposition on March 17, 1986. If, on a motion to dismiss matters outside the pleadings are presented and not excluded by the Court, the motion is to be treated as a motion for summary judgment. Since defendants have filed accompanying affidavits and exhibits with their motion to dismiss, the Court shall treat the motion as one for summary judgment pursuant to Federal Rule of Civil Procedure 56.

In contemplating a motion for summary judgment under Federal Rule of Civil Procedure 56, this Court is mindful of the strict standards imposed by the Eighth Circuit Court of Appeals. In Klinge v. Lutheran Charities Assn. of St. Louis, 523 F.2d 56, 61-62 (8th Cir.1975), the Court stated that such a motion is to be viewed in the light most favorable to the opposing party who also must receive the benefit of all reasonable inferences attainable from the material before the Court. In Butler v. MFA Life Ins. Co., 591 F.2d 448, 451 (8th Cir.1979), the Court held that summary judgment should not be granted unless the moving party has established its right to judgment with such clarity that no room for controversy remains and has demonstrated that the non-moving party is not entitled to recover under any discernible circumstances. For the reasons contained herein, defendants' motion for summary judgment will be granted.

Facts.

Plaintiff alleges that he suffered injuries as the result of an assault by a fellow inmate, Charles Whitney, in the Diagnostic and Observation Unit located at MCFP. Both Whitney and plaintiff were at MCFP for psychiatric evaluation. Plaintiff alleges that on May 23, 1983, he encountered Whitney when returning to his quarters after taking a shower. The plaintiff had not had any previous problems with Whitney prior to the assault. Plaintiff contends that Whitney stabbed him once in the back center of his neck with a pencil, causing a puncture wound and a large bump. After the single stabbing the alleged assault ended. Plaintiff sought medical treatment for the wound. On June 16, 1983, Dr. Clawson removed a piece of pencil lead from plaintiff's neck in an out-patient procedure which took approximately nine minutes.

Federal Tort Claims Act Claim.

In the instant action, plaintiff seeks damages pursuant to the FTCA, 28 U.S.C. §§ 2671-2680, 18 U.S.C. § 4042. This action was brought within six months after the final denial of plaintiff's administrative claim as required by 28 U.S.C. § 2675(a). When a claim is brought pursuant to the FTCA, the United States rather than the agency or its employees must be named as defendant. Mullins v. First National Exchange Bank of Virginia, 275 F.Supp. 712, 720 n. 3 (W.D.Va.1967). Plaintiff has named the United States as a party defendant and has sought to proceed against the six named defendants and an unknown correctional officer in their "official and individual capacities." Suits against federal officers in their "official capacities" are in reality suits against the United States Government. Hutchinson v. U.S., 677 F.2d 1322, 1327 (9th Cir.1982). However, the statutory provisions of the FTCA cannot be avoided by naming officers and employees of the United States as defendants. Since this action is a suit against the United States for the alleged actions of its employees and it has been named as a party defendant, the naming of the individual defendants in their official capacity is superfluous. Accordingly, the FTCA action against the individual defendants in their official capacity must be dismissed.

Further, the Court must grant summary judgment in favor of the defendant United States of America. This Court, viewing the file in the light most favorable to the plaintiff giving plaintiff the benefit of all reasonable inferences attainable from the material before the Court, concludes that plaintiff cannot recover under any discernible circumstances and no justiciable controversy remains. Plaintiff's recitation of facts would not allow recovery under the FTCA. Plaintiff has not presented any evidence that the United States was negligent in any way in providing him a safe and secure environment.

The United States, via the Bureau of Prisons, must exercise ordinary diligence in keeping prisoners safe and free from harm. Jones v. U.S., 534 F.2d 53, 54 (5th Cir.1976), cert. denied, 429 U.S. 978, 97 S.Ct. 487, 50 L.Ed.2d 586 (1976). In order to recover under a FTCA claim, a plaintiff must show that the United States was negligent in the exercise of its responsibilities. Id. Prison officials have broad discretion, free from judicial intervention, in classifying prisoners in terms of their custodial status. Id. In order to establish that the United States breached its duty, a prisoner must establish that prior to the assault by another inmate, prison personnel had been advised of a problem between the prisoner and another inmate. Id. An inmate can establish this breach by introducing evidence that he/she informed prison personnel of the problem, that he/she requested special protection or segregation from the inmate population, that there had been extraordinary incidents at the prison near the time of the assault or that the correctional staff observed group tension or other problems indicating a danger to the security of the inmate. Id.

Plaintiff has provided no evidence in this case upon which he could have a claim under the above standard. In the instant case, plaintiff testified under oath in his deposition that he arrived at the MCFP on May 11, 1983 and was placed in cell block 10 E for psychological evaluation during which time he was kept locked in his cell for three days. He was then allowed to go into the general population of the prison. (Artis' Deposition, pages 4, 5). He first noticed Mr. Whitney about one week after he was released into the population. He had no problems, arguments or altercations with Mr. Whitney until he was allegedly stabbed while in his cell on May 23, 1983 by Mr. Whitney. (Artis' Deposition, page 7). He made no complaint to any employee of the MCFP including the defendants about any threat to his safety from Mr. Whitney or anybody else prior to the alleged assault on May 23, 1983. (Artis' Deposition, pages 7, 8, 9). He did not ask to be placed in protective custody prior to the alleged assault (Artis' Deposition, page 8); and from the time of the alleged assault on May 23, 1983 until June 20, 1983 he was on administrative detention and kept from the general population. Plaintiff states he departed the Medical Center on June 20, 1983 (Artis' Deposition, page 36, 37, 38); and that he did not feel compelled to ask for protective custody after the alleged assault on May 23, 1983 since he was kept in administrative detention. (Artis' Deposition, page 37).

Further, each of the defendants indicate by their affidavits that they were unaware of any threat to the personal well-being of the plaintiff. The defendants indicate that had plaintiff reported that he feared that inmate Whitney might hurt him, they would have immediately taken steps to protect the plaintiff. Simply stated, there is no evidence of knowledge on any defendants' part of danger to the plaintiff prior to the alleged assault by Whitney and the defendant United States of America's motion for summary judgment must be granted.

Bivens' Claim.

Plaintiff's remaining claim, a Bivens-type action, seeks damages from the defendants individually under the eighth amendment to the United States Constitution. The Supreme Court has held that the violation of the Constitution by federal agents gives rise to a cause of action for damages consequent upon the unconstitutional conduct. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971). Recently, the Supreme Court held that a state prisoner suing under 42 U.S.C. § 1983 failed to state claim in that "the due process clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property." Daniels v. Williams, ___ U.S. ___, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Depending upon the constitutional right, mere negligence may not be enough to state a claim of a violation of the right. Id. at ___, 106 S.Ct. at 664-65. The Supreme Court found the principles enunciated in Daniels to be controlling in Davidson v. Cannon, ___ U.S. ___, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). (A prisoner sued prison officials seeking...