Bistrian v. Levi

Decision Date24 September 2012
Docket NumberNo. 10–3629.,10–3629.
Citation696 F.3d 352
PartiesPeter BISTRIAN v. Warden Troy LEVI, FDC Philadelphia; Assistant Warden Tracy Brown, FDC Philadelphia; Assistant Warden Blackman, FDC Philadelphia; Captain David C. Knox, FDC Philadelphia; J. McLaughlin, Special Investigative Agent, FDC Philadelphia; David Garraway, Special Investigative Agent, FDC Philadelphia; Lt. J.A. Gibbs, FDC Philadelphia; Senior William Jezior, FDC Philadelphia; Senior Officer Bowns, FDC Philadelphia; Senior Officer Bergos, FDC Philadelphia; Unit Manager White, FDC Philadelphia; Lt. Rodgers, FDC Philadelphia; Lt. R. Wilson, FDC Philadelphia; Lt. Robinson, FDC Philadelphia; Lt. D. Acker, FDC Philadelphia; Lt. D. Dempsey, FDC Philadelphia; Lt. Armisak, FDC Philadelphia; Clinical Director O. Dalmasi, M.D., FDC Philadelphia; Physician Assistant H. Bokhari, FDC Philadelphia; Physician Assistant A. Fausto, MLP, FDC Philadelphia; Chief Psychologist A. Boardman, FDC Philadelphia; A. Martinez, Health Service Administrator, FDC Philadelphia; G. Reynolds, M.D. FDC Philadelphia; K. Kaiser, PA–C, FDC Philadelphia; Q. Hit Alsbrooks, FDC Philadelphia; A. Zorrilla, NP, FDC Philadelphia; D. Massa, M.D., FDC Philadelphia; D. Still, DDS, CDO, FDC Philadelphia; John/Jane Does 1–10, Agents Servants, and Employees of Federal Bureau of Prisons and/or Federal Detention Center, Philadelphia; John/Jane Does 11–15, Agents, Servants, and Employees of other Departments, Agencies, and/or Bureaus of the United States of America; The United States of America Warden Troy Levi; Assistant Warden Tracy Brown; Assistant Warden Blackman; Captain David C. Knox; J. McLaughlin; David Garraway; Lt. J.A. Gibbs; Senior William Jezior; Senior Officer Bowns; Senior Officer Bergos; Unit Manager White; Lt. Rodgers; Lt. R. Wilson; Lt. Robinson; Lt. D. Acker; Lt. D. Dempsey; Lt. Armisak; Clinical Director O. Dalmasi, M.D.; Physician Assistant H. Bokhari; Physician Assistant A. Fausto; Chief Psychologist A. Boardman; A. Martinez; K. Kaiser; Q. Hit Alsbrooks; A. Zorrilla; D. Massa, M.D.; D. Still, Appellants.
CourtU.S. Court of Appeals — Third Circuit


John P. Kahn, Esq., (Argued), Archer & Greiner, Haddonfield, NJ, Carlton L. Johnson, Esq., Richard G. Tuttle, Esq., Archer & Greiner, Philadelphia, PA, for Appellants.

Jonathan S. Abady, Esq., Adam R. Pulver, Esq., O. Andrew F. Wilson, Esq., (Argued), Emery, Celli, Brinckerhoff & Abady, New York, NY, Stephanie B. Fineman, Esq., Fox Rothschild, Warrington, PA, Robert E. Goldman, Esq., Fountainville, PA, James L. Griffith, Esq., Fox Rothschild, Philadelphia, PA, for Appellee.

Before: McKEE, Chief Judge, SCIRICA, and AMBRO, Circuit Judges.


AMBRO, Circuit Judge.

Twenty-seven employees of the Federal Detention Center in Philadelphia (FDC Philadelphia) appeal the District Court's denial of their motion to dismiss Peter Bistrian's multiple claims. Bistrian asserts that, while he was awaiting sentencing on wire-fraud charges, prison investigators used him to intercept notes being passed among other inmates, and then failed to protect him after they flubbed the operation and the inmates discovered his involvement. When the target inmates threatened to retaliate, Bistrian contends he repeatedly begged the officials responsible for help, but no one took any preventive measures. Later, one of the inmates against whom Bistrian had cooperated, along with two others, beat him while they were together in a locked recreation pen. A few months later, an inmate wielding a razor-blade type weapon also attacked Bistrian in the recreation pen. In addition, Bistrian claims that certain chunks of the 447 days he spent in administrative segregation violated his substantive due process, procedural due process, and free speech rights.

Bistrian's 108–page Second Amended Complaint (the “Complaint”) includes 19 counts, 309 paragraphs, and an additional 114 pages of exhibits. After the District Court's ruling, six counts survived against 28 defendants. Though we pare down this action further as to both the number of defendants and claims, those that remain are plausible and can proceed past the motion-to-dismiss stage. Thus, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

I. Factual Background1A. Bistrian Enters the Special Housing Unit (“SHU”) for the First Time

Bistrian was a detainee at FDC Philadelphia from August 2005—when he was arrested on federal wire fraud-related charges—until his sentencing in March 2008. App. 74 ¶ 9; 186; 235. During that time he clocked four spells, totaling 477 non-consecutive days, in the Special Housing Unit (“SHU”). App. 81 ¶ 39.

The SHU is a segregated housing unit where inmates may be placed for either administrative or disciplinary reasons. App. 74–76 ¶¶ 11–17. Inmates are confined in solitary or near-solitary conditions in a six-by-eight foot cell “for 23 to 24 hours a day, with little or no opportunity to interact with other inmates.” App. 75 ¶ 12. They face sensory deprivation, reduced access to medical care, and increased suicidal tendencies. App. 75 ¶¶ 12–13.

Administrative detention in the SHU can occur for a variety of reasons. App. 76 ¶¶ 18–27. If an “inmate's continued presence in the general population poses a serious threat to life, property, self, staff, other inmates or the security or orderly running of the institution,” then the Warden may place the inmate in administrative detention if (among other reasons) an investigation of an inmate is pending for violating prison regulations or the inmate requests admission for protective purposes. App. 76 ¶ 19 (quoting 28 C.F.R. § 541.22(a)).2 Bureau of Prison (“BOP”) regulations require the Warden of a detention facility to prepare an administrative order “detailing the reasons for placing an inmate in administrative detention” within 24 hours of the inmate's placement, and to provide a copy to the inmate. App. 77 ¶ 20 (quoting 28 C.F.R. § 541.22(b)). In addition, a Segregation Review Officer (“SRO”) must make ongoing determinations about the appropriateness of the inmate's continued housing in administrative detention. App. 77–78 ¶¶ 21–27.

Disciplinary segregation is principally reserved for inmates “officially designated as exhibiting violent or seriously disruptive behavior while incarcerated.” App. 74–75 ¶ 11; 78–80 ¶¶ 28–37. Only a Discipline Hearing Officer (“DHO”) may impose disciplinary segregation, and may do so only after a hearing finding the inmate has committed a serious prohibited act. App. 78–80 ¶¶ 29–37. An SRO must also monitor inmates in disciplinary segregation and make determinations about the appropriateness of their continued separation. App. 80 ¶ 36.

On November 18, 2005, Bistrian was transferred out of the general prison population and into administrative detention in the SHU because he supposedly abused his telephone privileges. App. 85 ¶ 57. On December 9, 2005, a DHO sanctioned him to 30 days' disciplinary segregation for the alleged infractions. App. 85 ¶¶ 59. Bistrian was released from the SHU on January 9, 2006. Id. The propriety of this 30–day disciplinary segregation is not at issue here.

According to the Complaint, Warden Troy Levi failed to prepare an administrative detention order detailing the reasons for Bistrian's detention and to provide him with a copy within 24 hours of his initial confinement on November 18. App. 85 ¶ 60. Bistrian also claims an SRO failed to conduct, as required by BOP regulations, reviews of his placement in administrative detention between November 18 and December 9.App. 86 ¶ 61.

B. Bistrian Enters the SHU a Second Time

Shortly after Bistrian's release from the SHU on January 9, 2006, FDC officials again accused him of violating the telephone rules and placed him back in the SHU for administrative detention on January 25. App. 86 ¶ 63. This time Bistrian remained there for 308 days, until his release on December 8. Id. He claims that Warden Levi again did not prepare a timely and appropriate administrative detention order. App. 86 ¶ 64.

Bistrian also alleges that Warden Levi and nine other FDC officials (together the Prison Management Defendants) 3 met on a weekly basis to discuss the status of SHU inmates and to determine whether any of them should be released back into the general prison population. App. 80 ¶ 38. He claims that, during his second stay in the SHU, prison officials did not investigate the alleged phone abuse that was the supposed reason for his confinement. Instead, they intentionally confined him in administrative segregation under the pretext of a non-existent investigation in order to bypass the procedural protections required for disciplinary segregation. App. 86–87 ¶¶ 65–67.

1. Bistrian Collaborates with the Federal Bureau of Investigation (“FBI”)

In April or May 2006, Steve Northington (another SHU detainee) asked Bistrian (then an orderly in the SHU) to pass along a note to his fellow gang member and SHU detainee, Kaboni Savage. App. 89 ¶¶ 72, 74. Bistrian agreed, but later advised Lt. Gibbs and Sr. Officers Bowns, Jezior, and Bergos that he had done so. App. 89 ¶ 73. Northington and Savage are members of a drug gang from North Philadelphia. App. 89 ¶ 74. They have long and violent criminal careers with prior convictions for, among other things, robbery and aggravated assault. App. 89 ¶¶ 74–76. During a court-authorized wiretap of his SHU cell, Savage was caught on tape repeatedly threatening in graphic detail to kill the witnesses against him, their wives, parents, siblings, and young children. App. 89 ¶ 76 (citing Government's Sentencing Memorandum, United States v. Kaboni Savage, Criminal No. 04–269–01 (E.D.Pa. March 15, 2006)).

The FBI expressed interest in the notes being passed among Northington, Savage, and other detainees, because they were defendants in an ongoing drug gang prosecution that involved substantial witness intimidation, death threats to witnesses and law...

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