Kempker v. United States
| Decision Date | 06 July 2021 |
| Docket Number | Civil Action 1:19cv198 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | SCOTT FRANCIS KEMPKER, Plaintiff, v. UNITED STATES OF AMERICA, Respondent. |
REPORT AND RECOMMENDATION
On October 25, 2019, the pro se Plaintiff, an inmate at FCI Hazelton in Bruceton Mills, West Virginia, initiated this action by filing a Federal Tort Claim Act (“FTCA”) complaint. ECF No. 1. Plaintiff was granted permission to proceed as a pauper and satisfied the initial partial filing fee. ECF Nos. 6, 14. On November 19, 2019, attached to a motion for appointed counsel, Plaintiff filed a copy of a November 5, 2019 Administrative Claim denial letter for Administrative Tort TRT-MXR-2019- 06646, a lost property claim. ECF No. 9-1. By Order entered November 20, 2019, the motion for appointed counsel was denied. ECF No. 10. On December 10, 2019, Plaintiff filed a letter to the District Judge regarding his filing fee and issues with his case, attaching a copy of a November 8, 2019 email to his Trust Fund Officer and a copy of a November 25, 2019 Administrative Tort Claim acknowledgement letter for claim TRT-MXR-2020-01397, regarding a lost property/personal injury claim. ECF Nos. 12, 12-1, 12-2. On February 28, 2020, Plaintiff filed another letter to the District Judge regarding discovery in the case, attaching copies of thirteen “Affidavit(s) of Truth” from other inmates; a copy of an Inmate Personal Property Record; copies of two emails from Plaintiff to Health Services; copies of statements from two other inmates; a copy of a Release of Information Consent Form; a copy of a January 7, 2020 Extension of Time for Response - Administrative Remedy; and a copy of an October 18, 2019 Administrative Remedy response from the Administrator, National Inmate Appeals. ECF Nos. 16, 16-1 -- 16-8.
Because it was unclear whether Plaintiff was attempting to also raise Bivens civil rights claims, by Order Notifying Plaintiff of Potential Consequences of Pursuing Both a Federal Tort Claim and Bivens Action issued May 7, 2020, Plaintiff was directed to file a Notification with the Court indicating which action(s) he wished to pursue. ECF No. 20. On May 14, 2020, Plaintiff filed the Notification, advising that he wished to proceed only with the FTCA action.[1] ECF No. 22.
On August 31, 2020, Plaintiff filed a letter motion to introduce evidence, attaching a copy of a July 8, 2020 letter from the BOP regarding a Freedom of Information Act (“FOIA”) request; a photo; and copies of memoranda from various BOP staff. ECF No. 26, 26-1. On October 5, 2020, Plaintiff filed a letter motion to submit medical records into evidence, attaching copies of certain medical records and an administrative remedy. ECF Nos. 27, 27-1 - 27-6.
By Order entered October 6, 2020, the United States was directed to file an answer to the complaint. ECF No. 28. On December 14, 2020, the United States filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, with a memorandum in support, sworn affidavits, and numerous exhibits. ECF No. 35, 36. Because Plaintiff was proceeding pro se, on December 15, 2020, a Roseboro Notice was issued. ECF No. 37. After being granted several extensions of time, Plaintiff filed a response in opposition on May 13, 2021. ECF Nos. 40, 41, 45, 46, 50.
On May 10, 2021, Plaintiff filed a motion seeking a copy of the video evidence of the February 8, 2019 incident. ECF No. 48. By Order entered May 12, 2021, the motion was granted and the Defendant was directed to produce a copy of any existent video of the incident within 14 days. ECF No. 49. On May 14, 2021, in response, Defendant filed a sworn Declaration of Michael Moore. ECF No. 51. On May 24, 2021, Plaintiff filed a Motion for Summary Judgment and Response to Declaration to Michael Moore. ECF No. 53. Plaintiff also filed a Motion for Defendant to Produce a Copy of Policy and Procedure for Video Retainment. ECF No. 54.
On May 27, 2021, Defendant filed a Reply to Plaintiff's response in opposition to its dispositive motion. ECF No. 55. On June 1, 2021, Plaintiff filed a Motion for Discovery. ECF No. 57. On June 4, 2021, without leave of Court, Plaintiff filed a surreply titled “Plaintiff's Reply Memoranda [sic].” ECF No. 57. Defendant filed a Response in Opposition to Plaintiff's summary judgment motion on June 7, 2021. ECF No. 58. Defendant also filed a Motion to Seal Videos.[2] ECF No. 59. By Order entered June 7, 2021, the motion to seal was granted. ECF No. 60. On June 30, 2021, Defendant filed a motion for leave to file exhibit out of time, attaching a copy of Plaintiff's Two-Hour Lieutenant Restraints Check Form. ECF No. 62. By Order entered the same day, the motion was granted. ECF No. 63.
This case is before the undersigned for an initial review pursuant to LR PL P 2.
On November 17, 2017, Plaintiff was sentenced in the United States District Court for the Southern District of Iowa to a 144-month term of incarceration followed by an 8-year term of supervised probation. See SENTRY computerized Public Information Inmate Data, ECF No. 36-1 at 7. Assuming he receives all projected Good Conduct Time (“GCT”), Plaintiff is scheduled for release on June 9, 2027 via GCT Release. Id. at 6.
There appears to be no dispute that on February 8, 2019 at approximately 10:30 a.m., Plaintiff and another inmate, Richard Fisher (“Fisher”) were in Plaintiff's cell at FCI Hazelton when they “smoked a piece of paper with a chemical on it” and then became unconscious. See Complaint, ECF No. 1-7 at 15. Attached to his complaint, Plaintiff provided a copy of a February 8, 2019 Incident Report charging him with Prohibited Act Code(s) 201, 307, Fighting with Another Inmate, Refusing Order. ECF No. 1-7 at 8. The description of the incident is as follows:
On February 8, 2019 at approximately 10:28 a.m., staff requested assistance in L-1 unit due to inmates Kempker, Scott . . . and Fisher, Richard . . . displaying erratic behavior consistent with the use of an illicit substance. Upon arrival to cell 232 in L-1 unit, I observed both inmates flailing their arms and screaming. I gave the inmates multiple verbal orders to submit to hand restraints but the orders were ignored. I observed the inmates actively engaged in a fight, both inmates were exchanging closed fist punches to the head and upper torso. Orders to cease their actions were given but both inmates refused all orders. Chemical munitions were introduced into the cell but the inmates continued their disruptive behavior. Staff entered the cell and both inmates were placed in hand and leg restraints. Utilizing the Reeves Litter, [3] the inmates were escorted to Special Housing where they were medically assessed, decontaminated, and subsequently placed into hard ambulatory restraints due to their continued disruptive behavior.[4]
ECF No. 36-1 at 24. The Defendant also provided a copy of a February 8, 2019 Memorandum for John Squires, Deputy Captain, from Cottrell, subject: FCI Fight (OC Deployed) . . . stating:
On February 8, 2019, at approximately 10:28 AM, staff announced two inmates were suspected to be under the influence in L-1. Specifically, staff observed inmate Fisher . . . and Kempker . . . rolling around on the floor with slurred speech and throwing their arms around. When staff arrived both inmates were given direct orders to submit to hand restraints. Both inmates began swinging closed fists to the head and upper torso of each other. Staff gave the inmates orders to stop their assaultive behavior and get down on the ground with negative results. Staff could not approach the situation without being placed in serious danger; therefore, staff deployed (2) 5 round volleys from the pepper ball delivery system[5] which proved to be ineffective. Staff entered the cell with a shield. Inmates continued fighting on the ground and continued to resist staff orders and were combative throwing their arms around refusing to allow staff to place restraints on them. Staff placed inmates in hand restraints and leg restraints and placed the inmates in Reeves litter. Inmates were then taken to the Special Housing Unit. Due to their continued disruptive behavior upon entering the Special Housing Unit inmates were immediately placed in ambulatory restraints. Continuation was requested and granted by the Warden until they can establish a pattern of calm and controlled behavior. The inmates were decontaminated, medically assessed, photographed, and placed in alternate clothing. No staff injuries were reported. Minor inmate injuries reported.
Another Memorandum was prepared for Cottrell by A. McCune, Senior Officer...
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