Brembry v. United States
| Decision Date | 19 September 2011 |
| Docket Number | Civil Action No.: 7:10cv00388 |
| Parties | DEVAN BREMBRY, Plaintiff v. UNITED STATES OF AMERICA, et al., Defendants. |
| Court | U.S. District Court — Western District of Virginia |
By: PAMELA MEADE SARGENT
Plaintiff, Devan Brembry, an inmate formerly incarcerated at United States Penitentiary Lee County, ("USP Lee"), in Jonesville, Virginia,1 filed this action pro se for monetary damages, as well as declaratory and injunctive relief, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),2 and the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., ("FTCA"), against the United States of America and two employees of the Federal Bureau of Prisons, ("BOP"),3 asserting claims against them related to an assault he suffered at the hands of three other inmates, as well as with respect to the medical attention that he subsequently received from prison medical personnel. Jurisdiction over this matter is based upon 28 U.S.C. § 1331. This case is before the undersignedmagistrate judge by transfer based on the consent of the parties pursuant to 28 U.S.C. § 636(b)(1)(A).
The defendants filed a previous Motion To Dismiss Or, In The Alternative, Motion For Summary Judgment, (Docket Item No. 15.)4 Thereafter, Brembry filed a cross-motion for summary judgment. (Docket Item No. 18.) By Order entered January 13, 2011, the Honorable Glen E. Conrad, Chief United States District Judge, granted the defendants' prior motion in part and denied it in part, and he denied Brembry's cross-motion in its entirety. (Docket Item No. 22.) Specifically, the court dismissed each of Brembry's claims against the defendants except (1) his claim against the United States under the FTCA, which alleges that Officer Tignor negligently failed to protect him; and (2) Brembry's Bivens claim against Officer Tignor alleging the same. Thereafter, on July 15, 2011, the remaining defendants, United States of America and Officer Tignor, filed a Motion For Summary Judgment, seeking dismissal of Brembry's remaining Bivens and FTCA claims as a matter of law. (Docket Item No. 65) ("Motion"). Brembry responded to the Motion on July 28, 2011, (Docket Item No. 87), and the defendants filed their reply on August 8, 2011. (Docket Item No. 92.) Based on the arguments contained in the parties' briefs and the accompanying affidavits and exhibits, I will deny the Motion.I. Facts and Analysis
Brembry was an inmate incarcerated at USP Lee during all times relevant to this action. At approximately 10:30 a.m. on December 3, 2009, Officer Shannon Tignor, who was serving as the day shift officer in charge of Brembry's housing unit, ("E-Unit"), announced a prisoner "controlled move," which required all prisoners to return to their assigned housing units prior to the noon meal. After Officer Tignor unlocked and opened the inner door to the sallyport area of E-Unit, he stepped approximately eight feet outside of E-Unit while the inmates began returning to their assigned housing units. As Brembry entered the sallyport, three inmates assigned to other housing units began punching and kicking him. Brembry called for Officer Tignor to help, but he did not respond. Brembry was able to break free from his attackers and retrieved a mop handle from a nearby closet with which to defend himself. Brembry's attackers then proceeded upstairs to Brembry's assigned cell and waited for him to return. Brembry again called for Officer Tignor's assistance, but he still did not respond. When Brembry went to his cell and saw the inmates waiting for him there, he reached inside and pressed the duress alarm, after which his attackers began to assault him again. It was during this second assault that Brembry was struck with a metal object and received a gash in his forehead.
Officer Tignor, who was still positioned outside of the E-Unit, heard the alarm and then yelling from the top range of E-Unit. When he looked up toward Brembry's cell, he saw Brembry stabbing at three other inmates with a broken mop handle. Officer Tignor radioed for help, and multiple officers soon arrived on the scene and subdued each of the inmates. As he was being led away in handrestraints, Brembry twisted free from the officer who was escorting him and kicked one of his attackers, who also was restrained, in the groin, also striking an officer's lower leg in the process. Brembry was confined to the Special Housing Unit, ("SHU"), and he lost 27 days of good conduct time, as well as 120 days of commissary privileges. A transfer to another institution also was recommended.
As a result of the assault, Brembry required five surgical staples to close the wound to his forehead. One of these staples later had to be removed and was replaced with a steri-strip and surgical glue.
USP Lee employees work within a framework of various post orders. Special Post Orders for General Housing Units A Thru L states, in relevant part, as follows:
The Unit Officer will remain inside the inner door of the Unit during controlled movements. This will deter any prohibited acts being committed while the movements are in progress.
(Att. 4 to Docket Item No. 66 at 1.) According to David Wilson, Captain at USP Lee during all relevant times to this case, one of the responsibilities of correctional officers assigned to housing units is to monitor "controlled moves." (Att. 1 to Docket Item No. 66, ("Wilson Declaration"), at 2.) These are times when inmates are allowed to move from one area of the prison to another within a set period. (Wilson Declaration at 2.) In December 2009, a controlled move would take place from approximately 10:30 a.m. to 10:50 a.m. when inmates returned to their housing units from morning activities ("the Morning Controlled Move"). (Wilson Declaration at 2.) This move is in preparation for the lunch meal. (WilsonDeclaration at 2.) During the Morning Controlled Move, an officer from each housing unit is responsible for monitoring the area around the entrance of his unit. (Wilson Declaration at 2.) The main responsibility of these officers is to deter prohibited activity such as fighting, possession of contraband and inmates accessing unauthorized areas. (Wilson Declaration at 2.) Wilson testified that the officers are not expected to focus their attention exclusively on the housing unit entrance during this time. (Wilson Declaration at 2.)
According to the Captain's Post Order Review Sheet:
(Att. 7 to Docket Item No. 66.) Wilson testified that he is aware that the post orders in effect in December 2009 suggest that officers should remain inside the inner door of housing units during controlled moves. (Wilson Declaration at 2-3.) However, he testified that post orders are advisory documents that provide correctional officers with guidance on their responsibilities. (Wilson Declaration at 2.) He stated that specific post orders provide guidance organized by shift designation, time frame and topic, while special instructions post orders set forth a basic "how to" for duties and security inspections for each shift and at a particular post. (Wilson Declaration at 2.) Wilson stated that in certain situations, officers areexpected to deviate from written post orders, such as when necessary to maintain security within the institution, noting that an officer is expected to use his experience and judgment in deciding whether deviating from post orders is necessary. (Wilson Declaration at 2.) Wilson testified that during inmate movements, correctional officers are expected to position themselves in a manner that best deters prohibited activity. (Wilson Declaration at 3.) Wilson testified that, based on his correctional experience, the inner door of housing units is not more dangerous during the Morning Controlled Move than other areas of the prison. (Wilson Declaration at 3.)
Officer Tignor submitted a declaration, in which he stated that, during controlled moves, he would typically go back and forth between the inside and outside of E-Unit. (Art. 5 to Docket Item No. 66, ("Tignor Declaration"), at 2.) He stated that he always remained close to the entrance, generally within about 15 feet. (Tignor Declaration at 2.) Officer Tignor stated that he positioned himself differently from day to day to avoid establishing a predictable pattern. (Tignor Declaration at 2.) Officer Tignor further stated that officers are not expected to focus their attention exclusively on the housing unit entrance during this time. (Tignor Declaration at 2.) He testified that he believed the post orders in effect in December 2009 to intend that officers remain near the housing unit entrance during controlled moves. (Tignor Declaration at 2.) He stated that he understood that the post orders were only guidance and were not binding. (Tignor Declaration at 2.) Officer Tignor stated that he was never instructed to remain inside the housing unit for the entire duration of a controlled move. (Tignor Declaration at 2.)
William Faulk, a Senior Officer at USP Lee, also submitted a declaration, stating that when working as a housing unit officer during inmate movements, he typically goes back and forth between the inside and outside of the housing unit when monitoring controlled moves. (Att. 8 to Docket Item No. 66, ("Faulk Declaration"), at 1.) Faulk stated that in his experience, the inner door area of the housing unit is not more dangerous during the Morning Controlled Move than the...
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