Greene v. United States

• Decision Date: 29 March 2021
• Docket Number: Civil Action No. 6:19-cv-00024-GFVT
• Parties: MICHAEL GREENE, Plaintiff, v. UNITED STATES, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

MICHAEL GREENE, Plaintiff, v. UNITED STATES, et al., Defendants.

Civil Action No. 6:19-cv-00024-GFVT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON

March 29, 2021

MEMORANDUM OPINION & ORDER*** *** *** ***

Plaintiff Michael Greene is a federal inmate currently confined at the United States Penitentiary ("USP")-Canaan in Waymart, Pennsylvania. Proceeding without an attorney, Mr. Greene filed an amended complaint alleging claims against the United States and officials at USP-Big Sandy and USP-McCreary, both of which are located within this judicial district. [R. 6, 6-1.]¹ After initial screening of Mr. Greene's amended complaint pursuant to 28 U.S.C. § 1915, 1915A, several of Mr. Greene's claims were dismissed and the Defendants against whom those claims were alleged (including all of the USP-McCreary Defendants) were dismissed from this action. [R. 14.] However, the Court directed that that summons be issued and served on the following Defendants to respond to the following claims: 1) Mr. Greene's claim against the United States of America brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2670 et seq. ("FTCA"); 2) Mr. Greene's First Amendment retaliation claims brought pursuant to Bivensv. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), against Defendants Amanda Hirst, Brent Ousely,² Daniel Ferguson, and Joseph Kuntzman; 3) Mr. Greene's Eighth Amendment Bivens claim alleging that Ferguson used excessive force when restraining Mr. Greene in January 2018; 3) Mr. Greene's Eighth Amendment Bivens claim alleging that Mr. Kuntzman used excessive force through the improper use of oleoresin capsicum ("OC") spray while Mr. Greene was being extracted from his cell on February 9, 2018; 4) Mr. Greene's Eighth Amendment Bivens claim alleging Mr. Kuntzman and Jason Armes failed to protect Mr. Greene by leaving him in a four-point restraints without properly decontaminating him after he was exposed to OC spray during the February 9, 2018 incident. [R. 14]

The United States, Mr. Kuntzman, Ms. Hirst, Mr. Ferguson, and Mr. Ousley, by and through counsel, have filed a Motion to Dismiss, or in the Alternative, for Summary Judgment. [R. 48.]³ Mr. Greene has filed a response [R. 81] and the Defendants have filed a reply. [R. 82.] Thus, this matter has been fully briefed and is ripe for review.

I

The events related to Mr. Greene's remaining claims began on November 2017, when Mr. Greene alleges that Ms. Hirst watched him shower, which he claims female officers are not allowed to do. [R. 1 at 3.] Mr. Greene further alleges that, in December 2017, Mr. Ousley strip-searched him while Ms. Hirst watched. Id. Mr. Greene claims that Ms. Hirst and Mr. Ousley's conduct violates the Prison Rape Elimination Act ("PREA"), 42 U.S.C. § 15601 et seq., and he filed a PREA complaint against them in early January 2018. Id.

Mr. Greene then alleges that he was retaliated against as a result of his PREA complaint through threats and intimidation by Ms. Hirst and Mr. Ousley. Id. at 4. As part of this retaliation, he claims that Ms. Hirst orchestrated an incident sometime during the last week of January 2018, during which Ms. Hirst asked Mr. Greene whether he filed a PREA complaint against her in the presence of Mr. Ferguson, who then accused Mr. Greene of threatening Ms. Hirst and restrained him in a manner that Mr. Greene alleges constituted an excessive use of force. Id. Mr. Greene also alleges that Ms. Hirst, Mr. Ferguson, and two other prison officers filed a false incident report alleging that Mr. Greene had threatened Ms. Hirst. Id. These factual allegations form the basis of Mr. Greene First Amendment retaliation claim against Ms. Hirst, Mr. Ousley, and Mr. Ferguson, as well as an Eighth Amendment claim alleging that Mr. Ferguson used excessive force in restraining Mr. Greene.

Next, Mr. Greene alleges that, on February 9, 2018, he notified Mr. Kuntzman of "serious staff misconduct" related to Ms. Hirst and Mr. Ousley. Id. That same day, Mr. Greene and his cell mate covered the window of their cell, which they refused to remove. Id. at 5. According to Mr. Greene, they did not cover the window to be "disruptive or threatening," but to get information regarding whether someone from the Department of Justice was coming to see them to discuss the PREA complaint. Id. Mr. Greene alleges that Mr. Kuntzman retaliated against him for the staff misconduct complaint by using Mr. Greene's covering of the window as justification for employing a cell extraction team to remove Mr. Greene and his cell mate from their cell involuntarily. Id. During the removal of Mr. Greene from his cell, Mr. Greene claims that Mr. Kuntzman used excessive amounts of OC spray, which burned his skin. Id. Based on these allegations, Mr. Greene brings a First Amendment retaliation claim against Mr. Kuntzman and anEighth Amendment claim against Mr. Kuntzman alleging that the use of the OC spray in these circumstances constitute the use of excessive force against him.

After Mr. Greene was sprayed with OC spray, he was taken to a shower area to be decontaminated. Id. However, Mr. Greene claims that the water was too hot (which he claims was done intentionally by Mr. Kuntzman or other staff), so Mr. Greene was not properly decontaminated. Id. He then claims that Mr. Kuntzman refused to supply Mr. Greene with shoes, intentionally walked him down a hallway barefoot through human feces and urine, and then placed him in hand restraints. Id. at 6. Mr. Greene states that he again covered his window (which he claims was necessary so that a superior officer would be summoned) to request shoes. Id. However, he claims that Mr. Kuntzman retaliated further by moving Mr. Greene to the medical department and placing him in four-point restraints. Id. Mr. Greene alleges that Mr. Armes later did a wellness check on him, threatened him with sexual assault and refused to remove the restraints, notwithstanding Mr. Greene's complaints that his body was still burning because he had not been properly decontaminated after being sprayed with OC spray. Id. Based on these allegations, Mr. Greene alleges that Mr. Kuntzman and Mr. Armes failed to protect him in violation of the Eighth Amendment.

Based on all of these allegations, Mr. Greene brings an FTCA claim against the United States alleging that various Bureau of Prisons ("BOP") policies regarding PREA reporting, investigation of PREA complaints, sexual misconduct, the use of OC spray, and the use of restraints are too vague, reckless, inadequate, negligent, and are otherwise faulty. [R. 6-1 at 2, 3, 5-8]

Defendants the United States, Joseph Kuntzman, Brent Ousely, Daniel Ferguson, and Amanda Hirst, by counsel, have filed a motion to dismiss or, in the alternative, motion forsummary judgment on Mr. Greene's remaining claims. [R. 48.] With respect to Mr. Greene's FTCA claim against the United States, Defendants argue that this claim must be dismissed for failure to comply with the "presentment" requirement of 28 U.S.C. § 2675(a), which permits the exercise of jurisdiction over a claim against the United States only if it has already been presented to the appropriate federal agency for administrative settlement and the agency has denied the request. 28 U.S.C. § 2675(a). [R. 48-1 at 9.]

With respect to Mr. Greene's constitutional Bivens claims against the individual Defendants, Defendants argue that those claims must also be dismissed because Mr. Greene has failed to exhaust his administrative remedies with respect to those claims, as is required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e. Id. at 10. In the alternative, Defendants argue that the Court should decline to imply a remedy for retaliation under the First Amendment, thus Mr. Greene's First Amendment retaliation claims brought pursuant to Bivens must be dismissed. Id. at 13. With respect to Mr. Greene's Eighth Amendment claims alleging the use of excessive force, Defendants argue that Mr. Greene cannot demonstrate that either Mr. Ferguson or Mr. Kuntzman used excessive force against him. Id. at 18. Finally, Defendants argue that they are entitled to qualified immunity with respect to Mr. Greene's claims. Id. at 22.

II

Defendants move to dismiss Mr. Greene's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Id. at 5. A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the plaintiff's complaint. Gardner v. Quicken Loans, Inc., 567 F. App'x 362, 364 (6th Cir. 2014). When addressing a motion to dismiss, the Court views the complaint in the light most favorable to the plaintiff and accepts as true all "well-pleaded facts" in the complaint.D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). Because Mr. Greene is proceeding without the benefit of an attorney, the Court reads his complaint to include all fairly and reasonably inferred claims. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).

Here, Defendants move both to dismiss and for summary judgment, attaching and relying upon declarations extrinsic to the pleadings in support of their motion. [R. 48.] Thus, the Court will treat Defendants motion to dismiss the complaint as a motion for summary judgment under Rule 56. Fed. R. Civ. P. 12(d); Wysocki v. Int'l Bus. Mach. Corp., 607 F. 3d 1102, 1104 (6th Cir. 2010); see also Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (where defendant moves both to dismiss and for summary judgment, plaintiff is on notice that summary judgment is being requested, and the court's consideration as such is appropriate where the nonmovant submits documents and affidavits in opposition to summary judgment).

A motion under Rule 56 challenges the viability of another party's claim by asserting that at least one essential element of that claim is not supported by legally-sufficient evidence. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). A...