# BISTRIAN v. WARDEN TROY LEVI

> District Court, E.D. Pennsylvania · August 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10399638

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10399638

## How later opinions describe it (automated extraction)

- holding that officers’ failure to properly pat- and wand-search inmate who attacked fellow inmate in rec cage with makeshift knife would not be covered by the discretionary function exception and would, if proven, amount to negligence
- finding that the discretionary function exception applied to officers’ “foolish” decision to allow inmates access to razor blades and violent films

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PETER BISTRIAN, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 08-3010
:
WARDEN TROY LEVI, et al., :
Defendants. :

ADJUDICATION

Rufe, J. August 21, 2020
Nearly fourteen years ago, Plaintiff Peter Bistrian, a pretrial detainee in the Secure
Housing Unit at the Federal Detention Center in Philadelphia, was brutally attacked by a fellow
inmate armed with a contraband razor. His attacker, Aaron Taylor, had been placed in the SHU
for assaulting two other inmates with a razor weapon just a few months earlier. While in the
SHU, Taylor continued to receive razors for shaving. He kept one of them and fashioned it into a
weapon, which he smuggled into the recreation area. At the end of the recreation period, Taylor
waited until Plaintiff was handcuffed to be escorted back to his cell and could not defend
himself. Then Taylor attacked him, slashing him repeatedly with the razor weapon.1 When
correctional officers were unable to stop the assault by the usual means—pepper spray—they
resorted to deploying a munitions device, which rolled under Plaintiff and exploded beneath his
lower back.
Plaintiff sued the United States pursuant to the Federal Tort Claims Act, alleging that the
correctional staff of the Federal Detention Center negligently failed to protect him from the

1 Taylor was convicted of one count of assault with a deadly weapon, 18 U.S.C. § 113(a)(3), for the attack. See Trial
Tr. [Doc. No. 201], at 40–41, United States v. Taylor, Crim. No. 07-0288 (E.D. Pa. Dec 3, 2010).
attack by Taylor.2 The claim was tried to this Court, which now makes the following findings of
fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).
I. FINDINGS OF FACT
A. Events Preceding the Taylor Attack
1. Plaintiff Peter Bistrian was detained at the Federal Detention Center (“FDC”) in

Philadelphia from 2006 to 2008 pending trial on charges of wire fraud.3 He eventually
pled guilty to those charges.4
2. Plaintiff was placed in the Secure Housing Unit (“SHU”) in January 2006 for violating
telephone regulations.5
3. On June 30, 2006, Plaintiff was placed in a recreation area with inmates Steve
Northington, Jelani Lee, and Terry Walker, among others. Northington, Lee, and
Walker assaulted Plaintiff, badly beating him.6
4. As a result of the Northington assault, Plaintiff sustained a cracked or broken rib and
several broken or chipped teeth; experienced hearing problems; and urinated blood for
several days.7

2 Plaintiff also brought failure-to-protect claims against a number of individual officers of the Federal Detention
Center pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
based on a separate in-custody assault by different perpetrators. The Bivens and FTCA claims were bifurcated, Doc.
No. 259, and the Bivens claims were tried to a jury, which found all the defendants not liable, Doc. No. 394. At the
beginning of the bench trial on the FTCA claim, the parties stipulated to the “wholesale” admission of the record
from the Bivens trial. Trial Tr. July 25, 2019, at 15–16. All of the testimony and evidence from the Bivens trial is
therefore part of this trial record. To avoid confusion, Defendant’s exhibits from the Bivins trial are marked ‘D’ and
Government’s exhibits from the FTCA trial are marked ‘G.’
3 Bistrian Test., Trial Tr. July 9, 2019, at 44–45; Bistrian Test., Trial Tr. July 10, 2019, at 171.
4 Bistrian Test., Trial Tr. July 9, 2019, at 44.
5 Id. at 45.
6 Bistrian Test., Trial Tr. July 10, 2019, at 90–92; P-43. The Northington assault was the subject of Plaintiff’s
aforementioned Bivens claims.
7 Bistrian Test., Trial Tr. July 10, 2019, at 8.
5. Plaintiff also sustained a serious injury to his left shoulder, which may have been
dislocated in the assault.8
B. Razor Policy
6. The Bureau of Prisons (“BOP”) directs its correctional and detention facilities to adopt
post orders to give specific instructions and guidance to staff on a variety of issues.9

7. Bureau of Prisons Program Statement 5500.11, dated October 10, 2003, provides high-
level general guidance to BOP facilities on a number of subjects and instructs that
“[w]ritten procedures outlining and directing staff response should be prepared and
included in the appropriate post orders.”10
8. In 2006, the FDC had implemented certain policies and procedures governing the
distribution and collection of razors in the SHU, among other subjects, which were set
forth in written Program Statements, Post Orders, and Special Instructions. Program
Statements, Post Orders, and Special Instructions implement BOP policy.11
9. A SHU Post Order in effect in 2006 contained a written policy governing razors in the

SHU. It required officers to keep careful track of which inmates received a razor, to
collect razors within 10 minutes after distributing them, and to inspect razors upon
collection to ensure they had not been tampered with:
Officers are required to account for all razors utilized during the day. Razors
will be inventoried via bin card to insure accountability.

8 Bistrian Test., Trial Tr. July 9, 2019, at 91; P-43 at 9.
9 P-28 at 19.
10 Id. at 1, 19.
11 Vanyur Test., Trial Tr. Aug. 13, 2019, at 82–83, 105–06.
Officers will place a razor sign on the cell door of any inmate being issued a
razor. Inmates will have 10 minutes to shave and return the razor. Officers
will inspect the razor upon return to insure the blade is still intact.12

10. Officers were to issue one razor per inmate.13 Pursuant to the Post Order, the officer
distributing razors was required to place a magnet labeled with either the number “1” or
“2” on each cell door to indicate how many razors were distributed to that cell. (Two
razors could be distributed to a single cell shared by two inmates who both requested to
shave.)14
11. SHU officers kept a logbook in which they recorded the name and cell number of each
inmate who received a razor on a given day, the time the razor was distributed and
collected, as well as the number of razors distributed and collected.15
12. Inmates sometimes manage to obtain and conceal contraband, including razor blades, in
creative ways.16
13. For example, Officer Patrick Griffiths—one of the SHU officers in charge of
distributing razors to inmates in 200617—testified that inmates would remove a razor
blade from its safety handle, cut out part of a foil packet of ramen noodles the shape
and size of the blade, and replace the blade with the silver foil cutout, so that the
correctional officer collecting the razor would not notice that the blade was missing
from the handle.18

12 P-305 at 7; see P-310 at 120–121 (explaining the requirements for distributing and collecting razors, including the
ten-minute time frame).
13 Griffiths Test., Trial Tr. Aug. 20, 2019, at 8–9; see P-305 at 7.
14 Griffiths Test., Trial Tr. Aug. 20, 2019, at 9.
15 P-112; P-303; P-304.
16 Gravette Test., Trial Tr. July 26, 2019, at 49; Griffiths Test., Trial Tr. Aug. 20, 2019, at 7.
17 Griffiths Test., Trial Tr. Aug. 20, 2019, at 8.
18 Id. at 7.
14. The likely purpose of the ten-minute razor policy was to limit the opportunity of
inmates to conceal a razor blade using this or other methods.
15. FDC officers routinely disregarded the policy requirements governing razors.
16. The razor log for the relevant period shows that officers frequently failed to collect
razors within 10 minutes of distributing them.19

17. Additionally, other razor log entries implausibly record that dozens of razors were
given out and/or collected in the same minute. For example, the entries for July 16,
2006, purport to show that a single SHU officer distributed thirty razors to thirty
inmates in their cells at precisely 4:10 PM, and that the same officer collected all thirty
razors exactly ten minutes later at 4:20 PM.20
18. This pattern suggests that SHU officers often made inaccurate records of their
distribution and collection of razors, perhaps after the fact, so as to create the
appearance that they had distributed and collected razors on that day in compliance
with policy when, in fact, they had not.

19. The apparent falsification of some entries so as to create the appearance that razors
were collected exactly ten minutes after distribution also suggests that SHU officers
were aware of a requirement that razors be collected within ten minutes, even if they
did not always comply with it.21

19 See, e.g., P-303 at 14–17.
20 Id. at 11–12. The process of distributing razors involved going around to each cell, asking each inmate if they
wanted a razor, and providing the razor if requested. The Court does not find it plausible that thirty razors could be
handed out in one minute; rather, Officer Griffiths likely used an approximate time, which he filled in after handing
out all of the razor blades. See also, e.g., id. at 12–13 (recording that Officer Griffiths purportedly distributed
twenty-five razors at exactly 7:15 PM and collected all twenty-five at exactly 7:25 PM); id. at 16–17 (recording that
Officer Griffiths purportedly distributed twenty-eight razors at exactly 4:45 PM and collected all twenty-eight at
exactly 6:00 PM).
21 See, e.g., id. at 10–12.
20. A SHU Post Order in effect in 2006 contained a written policy governing searches of
inmates’ cells, or “shakedowns.” It provided:
Searches of housing areas are conducted primarily to uncover contraband,
maintain sanitation standards and eliminate fire and safety hazards. Inmates
will be removed from the area before starting a search. Particular attention
should be paid to beds, bedding, chairs and other areas which could be used
to conceal contraband. Searches will be logged in the shakedown log located
at the Officer’s station.22

21. If an inmate refused to return a razor, a shakedown would be conducted in accordance
with that procedure—removing the inmate from the cell, searching the inmate, and then
searching the empty cell.23
C. Aaron Taylor Obtains and Conceals a Razor
22. On July 1, 2006, FDC inmate Aaron Taylor assaulted two fellow inmates with a razor
blade while housed in the general population.24
23. As a result of that razor blade attack, Taylor was placed in the SHU from August to
October of 2006.25
24. Despite Taylor’s recent history of violent misconduct with razors, he continued to
receive razors in the SHU with no additional restrictions beyond those applied to all
SHU inmates (and routinely disregarded).26 He was not placed on “razor restriction,”
which would have either prevented him from receiving razors altogether or limited him

22 P-305 at 11.
23 Griffiths Test., Trial Tr. Aug. 20, 2019, at 10–11.
24 P-51 at 5.
25 Gravette Test., Trial Tr. July 26, 2019, at 12.
26 Knox Test., Trial Tr. Aug. 12, 2019, at 185–94. Captain Knox rather implausibly testified that Taylor’s access to
razors was not restricted, even after he attacked two inmates in general population with a razor and then refused to
return a razor once he was placed in the SHU, because FDC personnel including himself were concerned about
violating Taylor’s rights as an inmate. Id.
to shaving in the presence of a correctional officer.27 Placing an inmate with Taylor’s
profile on razor restriction would have been accepted, standard practice within the
Bureau of Prisons.28
25. On August 22, 2006, the razor log reflects that Taylor received at least one razor and
refused to return it.29

26. According to the razor log entry for August 22, 2006, Officer Griffiths distributed
razors around 6:30 PM and collected them around 9:30 PM, meaning that inmates were
left with the razors they received for approximately three hours—two hours and fifty
minutes more than the maximum time permitted under SHU policy.30
27. That three-hour interval directly violated the razor policy that, if followed, would have
drastically limited Taylor’s opportunity to remove the razor from its safety handle and
conceal it.
28. According to Officer Griffiths, when an inmate refused to return a razor, he would
typically “step off the range of the [SHU]” in order to notify the Operations
Lieutenant.31

27 Id. at 194–97; see also Gravette Test., Trial Tr. July 26, 2019, at 21–23; Griffiths Test., Trial Tr. Aug. 20, 2019, at
55.
28 See Gravette Test., Trial Tr. July 26, 2019, at 21–25 (opining that the failure to restrict Taylor’s access to razors
was a violation of “customs and practices, and sound correctional management”); but see Knox Test., Trial Tr. Aug.
12, 2019, at 194–97.
29 P-303 at 38. The razor log entry for this day does not contain a column indicating the number of razors distributed
and collected.
30 Id.
31 Griffiths Test., Trial Tr. Aug. 20, 2019, at 20 (“I don’t specifically remember this incident, but in common
practice, if this did happen, I would step off the range of the special housing unit to make contact with other staff
members, including the lieutenant, to let them know what was going on.”).
29. FDC officers testified that it is common practice for inmates to flush weapons down the
toilet if they believe their cell is going to be searched. No correctional officer remained
by the cell to see if Taylor flushed the toilet.32
30. The August 22, 2006 razor log entry notes that a “shakedown [was] conducted” with
“neg[ative] results,”33 meaning that Taylor’s person and his cell were searched but the

razor was not recovered.34
31. Taylor was written up for two disciplinary infractions in connection with this incident,
but was not written up for possessing a weapon, because “the razor was not present,” as
correctional officers assumed “he flushed the razor.”35
32. Taylor testified to a different sequence of events that led him to possess the razor he
used to attack Plaintiff. He testified that he obtained that razor when a correctional
officer accidentally distributed two razors to him, thinking he had distributed only one.
When the officer came to collect one razor from Taylor, he testified, he returned one as
requested and silently kept the other.36

33. Although parts of Taylor’s testimony were lucid, forthright, and credible, his account of
how he came to possess the razor was muddled and appeared to confuse several
different incidents Taylor recalled from his time in the SHU.
34. For example, Taylor claimed to recall two separate incidents in which he and a
correctional officer disputed how many razors he had been given. In one of those

32 Id. at 20–22, 36–37.
33 P-303 at 38.
34 Griffiths Test., Trial Tr. Aug. 20, 2019, at 10–11.
35 Id. at 22.
36 Taylor Test., Trial Tr. Aug. 12, 2019, at 27–29.
incidents, Taylor testified that the officer mistakenly gave him two razors and collected
only one, not realizing that Taylor had received and retained the other. In the other, the
August 22, 2006 incident recorded in the razor log, Taylor testified that the officer gave
him only one razor, but mistakenly believed he had given him two and wrote him up for
refusing to return one of them.37

35. Observing this portion of Taylor’s testimony, the Court’s impression was that Taylor
was either confusing the supposed incident in which he received two razors and
returned one with the August 22, 2006 incident, or making up the former incident
entirely. This impression is bolstered by the razor log entry for August 22, 2006, which
contains no suggestion that SHU officers believed Taylor was given two razors and
returned only one. Instead, the entry merely reflects that Taylor refused to return the
razor he was given.38
36. The Court finds that Taylor most likely came to possess the razor he ultimately used to
attack Plaintiff when he retained the razor he was given on August 22, 2006.

37. Correctional officers conducted a cursory and careless search of Taylor’s person and
cell after he refused to return the razor on August 22, 2006, because they assumed—
and, perhaps, hoped—that Taylor had flushed the razor down the toilet.
38. Officer Griffiths testified that inmates “could easily flush a razor” and often did so to
avoid being written up for refusing to return a razor.39

37 Id. at 26–29.
38 Taylor also testified that he only took razors on two occasions during this time period—once on August 22, and
once on the day of the supposed double-razor incident. Taylor Test., Trial Tr. Aug. 12, 2019, at 30–31. But the razor
log reflects that in late August 2006 alone, Taylor also received razors on August 24, August 29, and August 31. P-
303 at 40, 44, 45.
39 Griffiths Test., Trial Tr. Aug. 20, 2019, at 20.
39. Officer Griffiths also testified that the reason Taylor was not written up for a razor
infraction in this case, but rather for “refusing to obey an order from a staff member”
and for “insolence toward a staff member,” was that “the razor was not present”
because “he flushed the razor.”40
40. Other than Officer Griffiths’s testimony, the only evidence in the record substantiating

that any search was made is a terse note on the razor log indicating that Taylor “did not
return” a razor and that a “shakedown [was] conducted.”41 If a “shakedown”—that is, a
search of Taylor’s person and cell—had been conducted, policy required that the search
be recorded in the search log.42 No search of Taylor or his cell was recorded on the
search log.43
41. The search conducted, if any, was not memorable to Taylor, as he testified that he could
not remember if a search was done at all while he had the razor.44
42. Importantly, when asked how he managed to maintain possession of the razor weapon,
Taylor explained, “I just kept it with me in the cell. That’s how I was able to maintain
it.”45 The Court finds this straightforward response credible.

40 Id. at 22.
41 P-112 at 15.
42 P-305 at 4; Gravette Test., Trial Tr. July 26, 2019, at 15–16.
43 Gravette Test., Trial Tr. July 26, 2019, at 15–16; see also P-120 at 189–90. Officer Griffiths testified that a
“special” search like this one, not conducted in the regular course, would be documented in the razor log and
incident report, not in the search log, but that testimony contradicts both the written policy and the testimony of
Plaintiff’s expert on BOP policy and practice, as well as Captain Knox’s acknowledgement that a “shakedown” of
an inmate’s cell should have been recorded in the search log. See P-305 at 4; Gravette Test., Trial Tr. July 26, 2019,
at 15–16; Knox Test., Trial Tr. Aug. 12, 2019, at 200–01.
44 Taylor Test., Trial Tr. Aug. 12, 2019, at 19.
45 Id. at 18.
43. Indeed, Taylor testified that there was no need to devise a clever scheme for concealing
the razor from correctional officers.46
44. In view of all the evidence, the Court does not find persuasive the government’s
argument that this was a case of such great inmate ingenuity that even the most
thorough search protocols could not have turned up the razor weapon.47

45. Instead, the correctional officers were hasty in their search, assuming the razor had
been flushed, or did not conduct a search at all.
46. Alternatively, it is possible, though not likely, that Taylor came to possess the razor he
ultimately used to attack Plaintiff when a correctional officer inadvertently gave him
two razors and believed there was only one to collect.48
47. There is no question that the razor used to attack Plaintiff was issued to Taylor by the
FDC.

46 Taylor Test., Trial Tr. Aug. 12, 2019, at 18–19 (“How was I able to keep it? . . . You said, how was I able to keep
it? . . . I just kept it with me in the cell. That’s how I was able to maintain it.”). Taylor did not mention any hole that
he had dug out of a wall or any complicated manner of concealing the weapon in a body cavity. Although he was not
specifically asked if he did these particular things, a description of such a hiding place, if it existed, would have been
the obvious explanation for how he managed to maintain the weapon, and the Court finds the fact that he did not
mention any is strong evidence that it was not concealed in a body cavity, in a hole he dug in the wall, or in any
other manner described by the United States as an explanation for why they failed to find it.
47 See United States’ Proposed Findings of Fact and Conclusions of Law [Doc. No. 484] ¶ 11.
48 Although the Court finds this scenario somewhat less plausible, the incident report written after Taylor refused to
return a razor on August 22 does lend a measure of credence to the two inverse razor incidents Taylor claimed to
return. The incident report notes that Officer Griffiths believed Taylor and his cellmate had each been issued a razor,
and when he returned to collect them, Taylor handed back only one, insisting that Officer Griffiths had only given
him one. See P-58. This could suggest that Taylor also correctly remembered that on another occasion, he was given
two razors and only one was collected. Ultimately, regardless of how and when he obtained the razor, the fact
remains that the FDC failed to collect a razor from Taylor, allowing him to fashion the weapon he used to attack
Plaintiff.
D. SHU Inmate Search Policy
48. SHU policies and procedures in effect in 2006 required that inmates be pat-searched
and searched with a hand-held metal detector each time they left their cells to be
escorted to the recreation area.49
49. BOP policy required officers conducting searches of inmates with a hand-held metal

detector to thoroughly check body cavity areas where contraband could be hidden:
When using the hand-held metal detector, staff must closely check body
cavity areas, i.e., mouth, nose, ear, rectum, and vagina.50

50. At least some FDC officers appear to view these searches as essentially useless. In
particular, Officer Griffiths and Captain Knox were skeptical that the wands had the
sensitivity to detect razor blades through flesh—that is, if the razor blade were
concealed in a body cavity or behind an inmate’s genitals, they believed the wand
would not detect the razor.51 Taylor, too, volunteered his belief that the metal detecting
wands “don’t pick up razors.”52
51. On the other hand, Officer Griffiths explained that the metal detecting wands used at
the FDC were effective even through several layers of clothing, and that he would not
expect clothing to have any “impact” on their effectiveness.53

49 P-305 at 2 (“All inmates will be pat searched upon exiting their cell for any reason, no exceptions.”); P-28 at 14
(“Upon departing to and returning from outside recreation, inmates will be screened with a hand-held metal
detector.”); Gravette Test., Trial Tr. July 26, 2019, at 25, 81–82; Knox Test., Trial Tr. Aug. 12, 2019, at 150–51; G-
16 at 11; see also Griffiths Test., Trial Tr. Aug. 20, 2019, at 33 (testifying that conducting a pat-search and wand-
search upon escorting an inmate out of his cell was not discretionary, but that the decision whether to conduct a strip
search was discretionary).
50 P-28 at 11.
51 Griffiths Test., Trial Tr. Aug. 20, 2019, at 43; Knox Test., Trial Tr. Aug. 12, 2019, at 140–41.
52 Taylor Test., Trial Tr. Aug. 12, 2019, at 20.
53 Griffiths Test., Trial Tr. Aug. 20, 2019, at 44.
52. BOP policy required officers conducting pat-searches of inmates to follow proper
procedure for maximum effectiveness:
The pat search is used more often than other searches and must be performed
properly to be effective. Before starting a pat search, the inmate will remove
the contents from all pockets and any head gear. The head gear and personal
effects removed will be inspected after removal.54

53. Additionally, the general FDC Philadelphia Post Order in effect in 2006 prescribed a
specific sequence for all officers conducting pat-searches:
Pat searches should be conducted by staff from behind the inmate in order to
give staff an advantage in terms of protecting themselves. Before starting this
type of search, the inmate should remove the contents of his pockets and
remove his cap. The cap and personal effects removed from his pockets
should be inspected, then the complete search should be conducted as
follows:

A. Have the inmate face away from you with arms extended and his feet
apart at least twelve inches.

B. Use both hands and start at the back of the head, follow a direct course
across the back of the arms to the hands, then across the front of the
arms to the shoulders.

C. Return your hands to the original starting position and cover the
shoulders, back and sides to the belt line. Search the belt line, metal tip,
pockets, and chest area.

D. From the back at the waistline, proceed down the back and sides of the
legs to the shoe tops.

Check the shoe tops, trouser cuffs, socks and inside of the legs well up to the
groin.55

54. In addition to the razor log, FDC policy required the maintenance of a separate “search
log” used to track when and where searches were conducted in a particular housing

54 P-28 at 10.
55 P-306 at 22; see also Griffiths Test., Trial Tr. Aug. 20, 2019, at 13–16 (explaining how he conducts a pat-search
and noting that even when an inmate was wearing a jumpsuit, which did not have a defined belt line, officers would
“still check” the inmate’s belt line area “anyway”).
unit.56 The retention of a razor by an inmate would have triggered a search of the
inmate’s person and cell.57 That search was required to be recorded in the search log.58
55. In the SHU, inmates were rotated to a new cell approximately every three weeks to
minimize the risk that an inmate might create a place to hide contraband.59 Each time
this rotation occurred, SHU policy dictated that both the empty cell and the inmate be

searched to prevent the transportation of contraband to a new cell or the transfer of
contraband to the cell’s new occupant.60
56. FDC officers routinely disregarded the policy requirements governing searches.
57. Plaintiff testified that inmates “never really got pat searched” before being escorted to
the recreation area.61
58. While the government took the position in this case that the policies governing inmate
searches were invariably followed,62 Officer Jezior, who testified in the Bivens trial in
this case, previously testified in another case that the required search procedures were

56 Gravette Test., Trial Tr. July 26, 2019, at 15–17; see also P-305 at 4, 11.
57 Gravette Test., Trial Tr. July 26, 2019, at 15–17.
58 Id.
59 Knox Testimony, Trial Tr. Aug. 12, 2019, at 144. Although one would expect, under this policy, that Taylor’s cell
would have been rotated at least twice between mid-August and mid-October, only one cell rotation is evident from
the record. Taylor was moved from cell 821 to cell 823 sometime between September 26 and October 3. See G-24 at
5, 7 (logging searches of Taylor’s cell).
60 G-24 at 5, 7. The government points out that the razor log and search log document multiple searches of Taylor’s
cell during the relevant period—specifically, on August 22 (the day Taylor refused to return a razor), September 21,
September 26, October 3, and October 11, the day before the assault. See United States’ Proposed Findings of Fact
and Conclusions of Law [Doc. No. 484] ¶ 27. Far from allaying concerns about how these searches were conducted,
however, this series of searches—and especially the search on October 11—further calls into question the care and
thoroughness of the SHU officers in following search policy. Regardless of how or when Taylor obtained the razor
he used to attack Plaintiff, he almost certainly had it by October 11, the day before the assault. Indeed, he must have,
because the razor log shows that razors were offered to SHU inmates on October 10 and again on October 13, but
not on October 11 or 12. P-303 at 74. By October 11, therefore, Taylor must have already had the razor he used to
attack Plaintiff the following day, yet the October 11 search did not locate it.
61 Bistrian Test., Trial Tr. Aug. 7, 2019, at 49–50.
62 See, e.g., United States’ Proposed Findings of Fact and Conclusions of Law [Doc. No. 484] ¶ 6.
not always followed because of “shortage of staff, carelessness of officers, people being
in a rush.”63 Officer Jezior further testified that there were “certain staff who take
shortcuts.”64
59. As a result of the routine failure to adhere to the written search policies, inmates were
often able to bring items hidden on their person to the recreation area for trading with

other inmates or for other illicit purposes.65
E. Taylor Fashions a Razor Weapon and Brings It to the Rec Pen
60. At some point after August 22, Taylor fashioned a weapon from the plastic safety razor
by popping the blade out of the handle and then reattaching the exposed blade to the
handle with a sticky label from a deodorant cannister.66
61. The exact size of the razor weapon remains unknown because the United States
destroyed it.67 The only available photographs of the weapon have no scale comparison
that could indicate size,68 and although the materials Taylor used to fashion the weapon
give some approximate sense of its dimensions, even Officer Griffiths—the SHU

officer in charge of handing out razors to inmates, who was intimately familiar with the
particular kind of razor in question—spontaneously noted that he could not gauge the
weapon’s size without any scale indicator.69

63 P-310 at 117.
64 Id. at 131.
65 Bistrian Test., Trial Tr. Aug. 7, 2019, at 49–50.
66 Taylor Test., Trial Tr. Aug. 12, 2019, at 17–18.
67 Both the razor weapon and the stun munition deployed during the assault were preserved as evidence in
anticipation of Taylor’s criminal prosecution. Both were destroyed in 2015, many years after this litigation began
and after a letter from Plaintiff requesting that all exhibits from Taylor’s criminal trial be preserved and produced.
Memorandum Opinion [Doc. No. 459] at 25–31.
68 See P-167 at 10.
69 Griffiths Test., Trial Tr. Aug. 20, 2019, at 41–42.
62. Based on the available photographs and the general agreement about the materials used
to fashion the weapon, it might have been anywhere from about four inches long by one
inch wide to about seven inches long by two inches wide.70 The thickness of the
weapon is unclear from photographs, but because it was fashioned from the handle of a
plastic safety razor, it was not flat.71

63. In the weeks and months that followed the August 22 incident, other SHU personnel
continued to be concerned that Taylor was holding onto a razor.
64. For example, on September 22, 2006, FDC physician Dr. Gary Reynolds, MD, made a
notation in Taylor’s file stating that “custody staff expressed ongoing concern that
[Taylor] continues to possess a concealed weapon.”72
65. On September 27, 2006, Dr. Reynolds added a notation that Taylor could not receive
medical treatment until “any and all potential threats to staff are eliminated.”73

70 See P-167 at 10.
71 See id.; Taylor Test., Trial Tr. Aug. 12, 2019, at 17–18. Taylor’s testimony was that the weapon was fashioned
from the blade and handle of a plastic safety razor; there was also speculation that the blade could have been
attached to a toothbrush, which would likely have been even longer. See Knox Test., Trial Tr. Aug. 12, 2019, at
198–99.
72 P-284 ¶ 5; see also Gravette Test., Trial Tr. July 26, 2019, at 20–21.
73 P-284 ¶ 6. As a physician at the FDC, Dr. Reynolds “regularly entered information concerning an inmate for
whom I was providing or was asked to provide medical services in the medical record for that inmate maintained by
the Federal Detention Center.” Id. ¶ 7.
The government asks the Court to find that any possibility that Taylor might still have had the razor he received on
August 22 as of late September was eliminated when SHU officers searched Taylor’s cell on September 26, see G-
24 at 5, and the government points to Dr. Reynolds’s final notation from later in the day on September 27, 2006, that
he was “assured by custody [staff that] inmate no longer poses a threat,” P-284 ¶ 6. See United States’ Proposed
Findings of Fact and Conclusions of Law [Doc. No. 484] ¶ 28. This does not accord with the evidence. For one
thing, Dr. Reynolds’s earlier notation on September 27—that Taylor could not be examined by medical staff until
the threat was eliminated—was also made after the September 26 search, suggesting that the September 26 search
did not eliminate the threat, at least in Dr. Reynolds’s judgment. Moreover, both notations—the September 22
notation and the September 27 notation—were made after staff had already purportedly searched Taylor’s cell on
two prior occasions, first on August 22, the day he refused to return the razor, see P-303 at 38, and again on
September 21, see G-24 at 4. See P-284 ¶¶ 5, 6. If the August 22 “shakedown” and the September 21 search were
insufficient to assure custody staff and Dr. Reynolds that Taylor no longer had a weapon, it is unclear why the
September 26 search would have provided that assurance, and the government does not explain what, if anything,
was different about the September 26 search.
66. On September 28, 2006, Dr. Andrea Boardman, Ph.D., the chief psychologist for the
FDC, spoke to Taylor regarding an accusation he had made against another FDC
psychologist. Dr. Boardman noted Taylor’s “history of unprovoked violence” as well as
“staff perceptions that he may be mentally ill.”74
67. On October 6, 2006, Dr. Boardman placed Taylor on “psych alert” status, based on

Taylor’s history of recent violence and indications of paranoia, racial preoccupation,
and sexually inappropriate actions toward female staff.75
68. Correctional officers were given a list of all inmates on psych alert status.76
69. Plaintiff testified that sometime after he returned from the hospital, Officer Griffiths
admitted to him that “the entire staff knew that Aaron Taylor had a razor and nothing
was done about it. He shouldn’t have been out there with you.”77
70. The Court finds that testimony particularly credible, as it accords with the above-noted
FDC records showing that two FDC medical professionals on two separate occasions
within weeks before to the razor attack had expressed their concern that Taylor was

dangerous and/or potentially armed with a razor.
71. The Court cannot conclude that it was impossible to find the razor weapon in this case,
given its approximate size and the length of time—nearly two months—that it would
have been in Taylor’s possession before the assault. A proper search in compliance
with FDC and SHU policy at the time would have uncovered the razor, but no policy-
compliant search was made.

74 P-49 at 8.
75 Id. at 3.
76 Knox Test., Trial Tr. Aug. 13, 2019, at 36.
77 Bistrian Test., Trial Tr. Aug. 7, 2019, at 52–53. Officer Griffiths denied making this statement. Griffiths Test.,
Trial Tr. Aug. 20, 2019, at 30–31.
72. After conducting a cursory “shakedown,” SHU officers compounded their carelessness
by missing a second opportunity to find and confiscate the razor weapon—the required
pat- and wand-search before escorting Taylor to recreation.
73. On October 12, 2006, Plaintiff and Taylor were placed in the same “rec pen” in the
SHU recreation area.78

74. No direct evidence was presented that suggested that correctional officers made a
proper search of Taylor before escorting him to the rec pen in compliance with the
policy that all SHU inmates be pat-searched and metal-detected before taking
recreation. Instead, the government relied on the testimony of FDC witnesses that the
search policy was invariably followed at the FDC and argued that there was no reason
to believe it had not been followed in this instance.79
75. On the contrary, however, the only available direct evidence—Taylor’s testimony—
suggested that he was not properly searched in compliance with the applicable policy.
76. The weapon would not have laid flat under Taylor’s clothing; the plastic handle of the

safety razor would have made a detectable bulge.
77. Taylor testified that he recalled being pat-searched, but that the pat-search was
insufficient to detect the razor weapon through his several layers of prison-issued
clothing.80

78 Bistrian Test., Trial Tr. Aug. 7, 2019, at 23–24. The “recreation area” or “recreation yard” contained several
smaller enclosed spaces where one or more SHU inmates were permitted to take their daily hour of recreation.
Bistrian Test., Trial Tr. July 10, 2019, at 223.
79 See Knox Test., Trial Tr. Aug. 12, 2019, at 151–52 (testifying that, in his regular review of video surveillance of
officers escorting SHU inmates to recreation, Captain Knox had never observed an officer failing to follow the
search policy and that he “hope[d]” that the policy was followed on every such occasion); Griffiths Test., Trial Tr.
Aug. 20, 2019, at 34 (testifying that it was Officer Griffiths’s “practice” to pat-search and wand-search every inmate
before taking them to recreation, but that he could not speak to the practices of other officers).
80 See Taylor Test., Trial Tr. Aug. 12, 2019, at 19–20.
78. When Taylor was asked whether he was wand-searched, he initially responded, “no,”
and later added that although he could not definitely recall, he did not think he had
been.81
79. On the subject of how Taylor got the razor weapon from his cell to the rec pen, Taylor
testified:

Q: Okay. And on the day of the attack, how were you able to get this razor
weapon from your cell to the rec pen?
A: I put it inside my drawers.
Q: And so was that then sort of like on top of your buttocks and under your –
under what, your jumpsuit?
A: Yeah, in the front though.82

80. Taylor expanded on this testimony in another exchange:
Q: So the razor weapon, as I understand it, was in your front under your boxer
shorts?
A: Yeah.
Q: And this was below your waist, at your waist?
A: Below my waist.83
81. There was no evidence beyond pure speculation that Taylor concealed the weapon
behind his genitals or in any body cavity.84
82. Taylor’s agreement with counsel’s characterization that the weapon was “on top of” his
buttocks and underneath his clothing, but “in the front,” suggests that the weapon was
toward the top of his boxer shorts.85 Additionally, because Taylor was wearing prison-
issued boxer shorts rather than a tighter kind of undergarment, the weapon was most

81 Id.; see also id. at 24.
82 Id. at 19. The Court asked a clarifying question to determine that by “drawers” Taylor meant “underwear,” and
specifically “boxer shorts.” Id. at 21.
83 Id. at 21.
84 See, e.g., Knox Test., Trial Tr. Aug. 12, 2019, at 199.
85 Taylor Test., Trial Tr. Aug. 12, 2019, at 19.
likely placed in the waistband; otherwise it would have fallen through to his pant leg,
where it would certainly have been detected, as Officer Griffiths observed.86
83. Taylor testified that the reason the razor weapon was not detected was that he “had a lot
of clothes on,” including a “bigger jumpsuit and drawers” and a “t-shirt.”87 According
to Taylor, then, it was his clothing—not any clever system of hiding the razor behind

his genitals or in a body cavity—that concealed the weapon from detection.
84. Although the Court would have preferred that Taylor had been asked exactly where in
his “drawers” he concealed the razor weapon, the Court finds that it was not placed
under or behind his genitals, an area officers were forbidden to pat-search. Rather,
Taylor most likely stuck the weapon in the waistband of his boxer shorts, with the
waistband securing the weapon in place and the length of the weapon hanging down
inside the boxer shorts.
85. The Court finds that Taylor was not wand-searched. A proper wand-search would most
likely have detected the razor weapon in that spot.

86. The Court finds that Taylor was not properly pat-searched. A proper pat-search would
most likely have detected the razor weapon in that spot.
87. FDC policy required correctional officers to “[s]earch the belt line” of an inmate in the
course of a pat-search.88

86 Griffiths Test., Trial Tr. Aug. 20, 2019, at 40.
87 Taylor Test., Trial Tr. Aug. 12, 2019, at 20.
88 P-306 at 22.
88. Officer Griffiths testified that correctional officers were supposed to, and generally did,
search the “belt line”—that is, the waist area—of an inmate even if he was wearing a
jumpsuit, which lacks a defined belt line.89
89. Officer Griffiths demonstrated what a policy-compliant pat-search should look like. He
explained that a pat-search is “very systematic. We start from top to bottom. We’re

going to try to look – any seams in their clothing, anything we think could be some
place to conceal something.”90 After demonstrating the search of the collar, shoulder,
and arms, Officer Griffiths explained that an officer would “go to the front of the
[pants] or the front of the uniform . . . go down his chest, around his belt line, checking
anywhere, pockets, anything you could see on the belt line . . . down the front of his
buttons, across the top of his belt line, side of his body.”91 An officer would also search
his “upper thigh, down his legs, kind of inside of his upper thigh.”92
90. Had the officer escorting Taylor to the rec pen conducted a search remotely resembling
the search described by Officer Griffiths and required by the FDC post order, the razor

weapon would likely have been discovered.
91. Moreover, a correctional officer conducting a thorough, careful, policy-compliant pat-
search would have detected the bulge of the razor weapon even through the three layers
of clothing Taylor was wearing.93

89 Griffiths Test., Trial Tr. Aug. 20, 2019, at 14–15.
90 Id. at 14.
91 Id. at 14–15.
92 Id. at 15.
93 See id. at 27–28 (testifying that the inmates’ thermal shirts were “actually fairly thin, so it was actually very easy
to conduct the pat search on their person”). Captain Knox’s evasive and peculiar testimony on this point was neither
credible nor helpful. See Knox Test., Trial Tr. Aug. 13, 2019, at 49–52.
92. The Court previously ruled that the spoliation of the razor weapon did not warrant
“clos[ing] off all proof” on the issue of the weapon itself, and of whether Taylor was
properly searched, by conclusively determining that the weapon was too large to be
concealed from any proper pat-search. Instead, the Court ruled that the spoliation of the
razor weapon should be considered as “one factor among many” in determining

whether a proper search was made.94
93. Even apart from the spoliation of the razor weapon, the Court easily finds that
correctional officers failed to comply with the search policies when they escorted
Taylor to the recreation area.
94. The spoliation of the razor weapon further underlines that finding. As the Court
previously explained, “[t]he bigger and bulkier the razor weapon was, the less likely it
would be that an officer doing a thorough pat search would not feel it.”95
95. The government’s actions deprived Plaintiff of the ability to introduce the actual razor
weapon into evidence. This is further support for the Court’s finding that a thorough,

policy-compliant pat-search would certainly have detected it, as the government is not
entitled to any benefit of the doubt that the razor weapon was closer to four than seven
inches.
96. Unfortunately, there was still more critical evidence—evidence that would have
definitively showed whether Taylor was properly searched—that was unavailable at
trial because it was not preserved.

94 Memorandum Opinion [Doc. No. 459] at 31.
95 Id. at 30.
97. Video surveillance cameras in the SHU hallways record any activity at the doorway of
or just outside each SHU cell. Those cameras would have captured footage of
correctional officers removing Taylor from his cell and escorting him to recreation on
October 12, 2006, as well as any search—or lack thereof—the officers conducted,
which would have taken place just outside Taylor’s cell.96

98. The government failed to preserve this video. The Court previously ruled that, while
that failure did not amount to bad faith, the loss of the video did prejudice Plaintiff.97
The Court therefore determined pursuant to Federal Rule of Civil Procedure 37(e)(1)
that it was appropriate for the Court to “consider the video’s destruction as one factor
among many in making its ultimate determination, as the finder of fact, as to whether
SHU staff properly searched Taylor.”
99. Again, even without considering the multiple layers of spoliation, the Court easily finds
that SHU officers did not properly search Taylor before escorting him to recreation.
100. The loss of the hallway video, like the destruction of the razor weapon, further

underlines this finding. As the Court previously determined, the government was under
a duty to preserve the video and allowed it to be overwritten anyway, causing the loss
of the only evidence that could definitively show how thoroughly (if at all) officers
searched Taylor.98

96 Griffiths Test., Trial Tr. Aug. 20, 2019, at 28–29; Knox Test., Trial Tr. Aug. 12, 2019, at 167–68; Taylor Test.,
Trial Tr. Aug. 12, 2019, at 24–25.
97 Memorandum Opinion [Doc. No. 459] at 20–25; Griffiths Test., Trial Tr. Aug. 20, 2019, at 28–29.
98 Memorandum Opinion [Doc. No. 459] at 8–25.
101. As explained above, the careless search made by officers is particularly puzzling and
alarming in light of evidence that some FDC personnel continued to believe, between
August and October, that Taylor was holding onto a razor.
102. Although search policies requiring a pat- and wand-search of inmates on their way to
recreation should have been followed in every instance, the record in this case suggests

that there was a particular need for careful adherence to policy in this situation, where
Taylor had refused to return a razor and several SHU officials were concerned that he
still had it.
103. The Court finds, in sum, that there was widespread knowledge among SHU officers
that Taylor was an acute danger to others and was likely in possession of a razor before
the attack on Bistrian, and that the officers in charge of searching Taylor before
escorting him to the rec pen nevertheless made no wand-search and made a hasty,
sloppy pat-search where a proper search would almost certainly have uncovered the
weapon and prevented the assault. That search was unacceptably careless, particularly

under the circumstances.
F. Taylor Attacks Bistrian with the Razor Weapon
104. On October 12, 2006, Plaintiff was placed into a locked rec pen with Taylor and several
other inmates.99
105. The rec pens, like the rest of the SHU, were surveilled by video cameras.100 Video
footage of the Taylor assault was captured, preserved, and used at trial, unlike the lost
hallway footage.

99 Bistrian Test., Trial Tr. Aug. 7, 2019, at 23–28; P-4.
100 See Gravette Test., Trial Tr. July 26, 2019, at 42–43; see also Griffiths Test., Trial Tr. Aug. 20, 2019, at 29.
106. At the end of the recreation period, per FDC policy, each inmate placed his hands
behind his back at the wicket in the rec pen door to be handcuffed.101
107. All inmates were required to be cuffed before the rec pen could be opened and the
inmates escorted back to their cells.102
108. Bistrian was handcuffed before Taylor. According to Taylor, he “intentionally stayed

back,” as was his practice, since he believed “it’s always best to . . . get your cuffs put
on last when it’s time to go in.”103
109. As Bistrian stepped away from the wicket in the recreation pen door after he had been
put into hand restraints, Taylor lunged at Bistrian with the razor weapon and began
slashing at Bistrian’s head and body.104
110. Without the use of his arms to defend himself, Bistrian threw himself to the ground,
attempting to fight Taylor off with his legs.105
111. The assault lasted for about two and a half minutes.106
112. Plaintiff sustained extensive lacerations to his face, arms, and legs.107

113. Correctional officers first deployed pepper spray in an attempt to break up the assault
so that they could safely enter and restrain Taylor.108

101 Knox Test., Trial Tr. Aug. 12, 2019, at 163–64.
102 P-305 at 8.
103 Taylor Test., Trial Tr. Aug. 12, 2019 at 32–33.
104 P-4; Bistrian Test., Trial Tr Aug. 7, 2019, at 25.
105 P-4; Bistrian Test., Trial Tr. Aug. 7, 2019, at 25–26.
106 P-4.
107 P-114 at 1–3.
108 Knox Test., Trial Tr. Aug. 12, 2019, at 159–60.
114. Taylor was not deterred by the pepper spray; he continued to stab and slash at Plaintiff
with the razor weapon.109
115. When multiple cans of pepper spray proved ineffective, correctional officers deployed a
device called a “Tactical Blast Stun Munition” into the rec pen in the hope that it would
temporarily stun and disable Taylor.110

116. A stun munition produces a bright flash of light and a very loud noise, as well as a
pressure wave measuring five pounds per square inch at a distance of seven feet.111
117. The munitions device rolled underneath Plaintiff, who was still lying supine on the
ground, and exploded beneath his back.112
118. The kind of munitions device used to break up the Taylor assault is extremely
dangerous if deployed in the direction of a person. Its instructions warn that it should
never be aimed at a person or group of people and that it can cause contusions,
abrasions, broken ribs, concussions, loss of eyes, superficial organ damage, serious skin
lacerations, massive skull fractures, rupture of the heart or kidney, fragmentation of the
liver, hemorrhage, or death.113

119. The explosion of the stun munition threw Plaintiff’s body into the air and knocked
Taylor to the ground.114

109 Id. at 160.
110 Id. at 160–62.
111 P-125; Gravette Test., Trial Tr. July 26, 2019, at 40.
112 P-4; Bistrian Test., Trial Tr. Aug. 7, 2019, at 26.
113 P-125.
114 P-4; Bistrian Test., Trial Tr. Aug. 7, 2019, at 26, 28.
120. Correctional officers were then able to enter the rec pen, subdue Taylor, and begin
attending to Plaintiff’s injuries.115
G. Damages
121. As a direct result of the Taylor assault, Plaintiff suffered scarring on his face, arms, and
legs; permanent nerve damage to his leg and foot causing numbness and loss of

balance, among other things; and chronic back injuries, including pain and spasms.
122. Immediately after the assault, Plaintiff received medical attention at the FDC, where his
injuries were assessed and photographed.116
123. Because his injuries were assessed to be severe, Plaintiff was transported to the
emergency room of a nearby hospital for treatment. He was treated and returned to the
FDC the same day.117
i. Razor Wounds
124. Plaintiff sustained multiple lacerations to the left side of his face, his left lower leg, his
right ear, and his right leg.118

125. The razor lacerations were long and deep, cutting through skin and fascia and into
muscle.119
126. The laceration to Plaintiff’s left leg alone required twenty stitches.120 The laceration to
his face required twelve stitches.121

115 Knox Test., Trial Tr. Aug. 12, 2019, at 162-163.
116 Bistrian Test., Trial Tr. Aug. 7, 2019, at 43–47; P-114 at 1, 2; P-167 at 3, 5, 9.
117 P-151 at 4; P-291 (Reynolds Dep.) at 44–45. Deposition designations of Plaintiff and counter-designations of
Defendant were admitted into evidence. Trial Tr. July 25, 2019, at 50–51.
118 P-151 at 2; P-291 (Reynolds Dep.) at 74–75.
119 P-291 (Reynolds Dep.) at 74–75.
120 Id. at 51.
121 Id. at 48.
127. Plaintiff has permanent scarring as a result of the razor attack, including scarring to his
face.
128. The Taylor assault was a substantial factor—indeed, the only factor—in causing the
razor lacerations and subsequent scarring Plaintiff suffered.
129. Plaintiff presented some evidence to suggest that the razor attack caused a condition

called “drop foot” or “slap foot” that affected Plaintiff’s gait.
130. In a number of contemporaneous letters to family members, Plaintiff complained of
numbness and “limited feeling” and expressed that his balance was “off” because he
could not feel his foot hit the ground.122
131. Dr. Reynolds, a physician at the FDC, confirmed that Plaintiff had complained of
numbness in his lower extremity to FDC medical staff.123
132. No objective clinical evidence prior to 2018 substantiated any loss of sensation or
function to Plaintiff’s lower extremities.124
133. No expert witness opined regarding “drop foot” or any other numbness or loss of

sensation or function in Plaintiff’s lower extremities prior to 2018, when Plaintiff
apparently began to suffer from peripheral neuropathy. To the extent that drop foot is a
separate condition that Plaintiff asserts he suffered from in the immediate wake of the
Taylor assault, there was insufficient evidence to support such a condition.
134. Plaintiff cannot meet the burden of showing medical causation without expert
testimony.

122 See, e.g., P-204 at 3-4; P-275 at 4; P-276 at 3.
123 P-291 (Reynolds Dep.) at 61, 67–68, 90–91.
124 See Schwartz Test., Trial Tr. July 15, 2019, at 82.
135. The Court is unable to find that Plaintiff suffered from “drop foot” or another similar
condition. The Court will separately analyze Plaintiff’s claims of peripheral neuropathy
as part of the cascade of complications resulting from the back injury in the Taylor
assault.
ii. Back Injury

136. Before his incarceration, Plaintiff had no notable trouble with his back.125
137. In order to stop Taylor from attacking Plaintiff, guards at the FDC threw a munition
device into the rec pen. This device blew up underneath Plaintiff’s back, causing his
body to be thrown slightly into the air, ultimately flipping him over onto his side.126
138. Immediately after the Taylor assault, Plaintiff began to complain of back issues.127
139. In the months following the Taylor assault, Plaintiff was repeatedly treated by FDC
medical staff for low back pain and spasms.128

125 Karsch Test., Trial Tr. Aug. 7, 2019, at 9; see also P-111 at 105. There is no evidence that Plaintiff suffered any
back pain or injuries before his incarceration. The government asks the Court to find that Plaintiff’s college football
career was a risk factor for future back pain, but the government does not suggest that Plaintiff ever suffered from
back pain before the two assaults. See United States’ Proposed Findings of Fact and Conclusions of Law [Doc. No.
484] at ¶¶ 199–200. Dr. Gene Salkind, MD, noted that Plaintiff “did not have any complaints of back or leg pain
when he was playing football.” Salkind Test., Trial Tr. July 11, 2019, at 28–29.
126 P-4.
127 Bistrian Test., Trial Tr. Aug. 7, 2019, at 79–88; P-291 (Reynolds Dep.) at 48 (explaining that a medical note
made on October 19, 2006 recorded that Plaintiff was complaining of “low back pain”); id. at 51 (explaining that a
medical note made on November 3, 2006 recorded that Plaintiff was complaining of “low back pain”); id. at 57
(explaining that a medical note made on November 9, 2006 recorded that the Assistant Health Services
Administrator had requested that Plaintiff be evaluated for “persistent back pain” and that Plaintiff was assessed as
having spinal pain “at the left lumbosacral angle”); id. at 70 (explaining that medical note dated January 12, 2007
recorded that Plaintiff was complaining of “low back pain”); id. at 90–91 (explaining that Plaintiff submitted a
request on October 29, 2006 asking to be evaluated for lower extremity numbness and “back problems such as
spasms”)
128 See supra note 127126.
140. Dr. Reynolds, the FDC physician who evaluated Plaintiff on November 9, assessed his
back pain and the numbness in his lower extremities as being “from the assault on
10/12/06.”129
141. Plaintiff did not have access to physical therapy or other rehabilitative services in the
SHU, where he remained after the Taylor assault.130

142. Dr. Reynolds advised Plaintiff to increase his physical activity to assist his recovery
from the Taylor assault.131 In particular, Dr. Reynolds counseled Plaintiff that core
strengthening is an important aspect of recovery from back injuries, and that stretching
would also be helpful.132
143. Plaintiff followed Dr. Reynolds’s advice, exercising frequently during the remainder of
his incarceration and after his release in 2009.133
144. Plaintiff’s exercise routine included some physically demanding strength exercises.134
145. Plaintiff’s ability to perform demanding upper-body strength exercises like “handstand
pushups” is not inconsistent with back and lower-body pain.

146. Plaintiff’s physician-recommended exercise regimen, both at the FDC and after his
release, in no way calls into question whether Plaintiff was experiencing back pain.135

129 P-291 (Reynolds Dep.) at 57–61, 66–68.
130 Id. at 62–64; Bistrian Test., Trial Tr. Aug. 7, 2019, at 81–82.
131 P-291 (Reynolds Dep.) at 64–69.
132 Id.
133 G-122 at 5–6; Bistrian Test., Trial Tr. July 10, 2019, at 96–97, 217–18; Bistrian Test., Trial Tr. Aug. 12, 2019, at
57.
134 Bistrian Test., Trial Tr. Aug. 8, 2019, at 101-04, 111.
135 The government asks the Court to find that any harm Plaintiff sustained in the Taylor attack was fully resolved by
February 2007, when Plaintiff reported that he was able to perform a demanding exercise regimen. See United
States’ Proposed Findings of Fact and Conclusions of Law [Doc. No. 484] ¶¶ 77–85. This is emblematic of the
impossible standard the government seeks to hold Plaintiff to, as it also asks the Court to find that Plaintiff failed to
mitigate damages by foregoing potentially beneficial treatment options after his release. See id. ¶¶ 401–29.
147. Plaintiff’s exercise regimen is consistent with a genuine attempt, as an injured former
athlete,136 to rehabilitate as instructed by physicians and to mitigate damages.
148. Further, Plaintiff’s continued exercising in order to maintain his strength in the prison
setting, where he had been the victim of two violent assaults and feared another,137 is
not evidence that he was not in pain as a result of the Taylor assault.

149. In an October 31, 2006 letter to his mother, Plaintiff complained that his “lower back
[was] screwed up totally,” and that he was suffering “back spasms in [his] lower back
on a regular basis.”138
150. Plaintiff complained of significant and worsening back pain in numerous letters to
family members during the weeks and months following the Taylor assault.139
151. Plaintiff’s daughter testified that when she visited him following the Taylor assault he
complained of being in pain and she observed that he appeared to be in pain, sitting in
odd positions and shifting around.140
152. The defense’s medical expert, Dr. Scott Rushton, MD, was qualified as an expert in
orthopedic surgery and spinal surgery.141

136 See Karsch Test., Trial Tr. Aug. 7, 2019, at 8–9.
137 See id. at 12.
138 P-275 at 4. Plaintiff wrote that he had still “not seen a real doctor yet regarding my injuries,” suggesting that his
complaints stemmed from the October 12 Taylor assault, for which Plaintiff did not receive medical attention
between the day of the assault and November 9. Id.; see also P-291 (Reynolds Dep.) at 44, 57, 64 (explaining that a
physician’s assistant treated Plaintiff after the assault on October 12 while Dr. Reynolds did not personally evaluate
him until November 9).
139 P-276 at 2; P-277 at 2; P-204 at 3; P-278 at 3; P-205 at 3; P-207 at 1; P-206 at 3; P-279 at 2; P-208 at 3; P-209 at
2.
140 Karsch Test., Trial Tr. Aug. 7, 2019, at 13.
141 Rushton Test., Trial Tr. July 19, 2019, at 36.
153. Dr. Rushton was not provided with video or images of the Taylor assault, nor was he
informed that a visual record of the assault existed.142 Dr. Rushton acknowledged that
having a visual of the trauma “would have assisted” him in reaching his conclusions.143
154. Plaintiff’s medical experts, Dr. Gene Salkind, MD, and Dr. Harry Schwartz, MD, were
qualified as experts in “medicine and neurosurgery, general neurological surgery” and

“physical medicine and rehabilitation, as well as spinal cord injuries,” respectively.144
155. Dr. Salkind and Dr. Schwartz were provided with still images from the video of the
Taylor assault, which graphically illustrated the trauma to Bistrian, including the force
of the stun munition explosion.145
156. The experts generally agreed that Plaintiff had degenerative disc disease or arthritic
change in the spine, which had already existed for some time prior to both the
Northington and Taylor assaults.146
157. Dr. Salkind and Dr. Schwartz each reviewed extensive medical documentation and
examined Plaintiff personally.147

158. Dr. Salkind concluded that Plaintiff’s degenerative disc disease, which he described as
part of the normal “wear and tear” on the human spine, was asymptomatic prior to the
Northington and Taylor assaults.148

142 Id. at 65–66.
143 Id.
144 Salkind Test., Trial Tr. July 11, 2019, at 11; Schwartz Test., Trial Tr. July 15, 2019, at 11.
145 Salkind Test., Trial Tr. July 11, 2019, at 15–16; Schwartz Test., Trial Tr. Aug. 12, 2019, at 100–01.
146 Salkind Test., Trial Tr. July 11, 2019, at 16–17; Rushton Test. Trial Tr. July 19, 2019, at 51–53.
147 Salkind Test., Trial Tr. July 11, 2019, at 12–14; Schwartz Test., Trial Tr. July 15, 2019, at 14–16, 41–44; D-159
at 1–2.
148 Salkind Test., Trial Tr. July 11, 2019, at 16–18.
159. Dr. Salkind further concluded that Plaintiff’s back pain was the result of the traumas,
which activated Plaintiff’s underlying, previously asymptomatic arthritic condition.149
160. Dr. Schwartz similarly concluded that, although Plaintiff already suffered from an
underlying asymptomatic degenerative disc disease, the “initial cause” of Plaintiff’s
back pain was the assaults, and that Plaintiff’s back pain had progressively worsened

over time in a kind of downward spiral of complications.150
161. The opinions of Dr. Salkind and Dr. Schwartz were informed in part by their
assessment of the extent of the trauma to Plaintiff in the Taylor assault based on the
images they viewed.
162. Dr. Rushton also reviewed medical records and examined Plaintiff.151
163. Dr. Rushton opined that Plaintiff’s back pain was caused by his underlying
degenerative condition, not by any trauma.152
164. That conclusion is inconsistent with the contemporaneous evidence of new significant
back pain in Plaintiff’s medical records at the FDC and in Plaintiff’s letters to family

members in the immediate aftermath of the Taylor assault. Dr. Rushton did not offer
any explanation of those immediate-onset symptoms.
165. The Court credits the expert opinions of Dr. Salkind and Dr. Schwartz, who observed
the original trauma to Plaintiff and whose opinions account for the voluminous
contemporaneous evidence of new significant back pain immediately after the Taylor
assault.

149 Id.
150 Schwartz Test., Trial Tr. July 15, 2019, at 16.
151 Rushton Test., Trial Tr. July 19, 2019, at 38–39.
152 Id. at 55–58, 62–63, 67.
166. Dr. Salkind opined that no competent, responsible physician would have prescribed the
amounts and dosages of narcotic pain medications Plaintiff received and took unless the
physician believed Plaintiff was genuinely in severe pain.153
167. Dr. Schwartz opined that Plaintiff’s self-reported pain levels were consistent with
objective clinical findings.154

168. No expert was able to opine, within a reasonable degree of medical certainty, regarding
the exact proportion of Plaintiff’s pain that was attributable to each of the two assaults
Plaintiff suffered at the FDC.155
169. Plaintiff’s expert on the Bureau of Prisons system, Timothy Gravette, explained that
there was no indication of any back injury in the documentation of Plaintiff’s injuries
from the Northington assault.156
170. Plaintiff testified that while he had some back pain after the Northington assault, the
stun munition explosion beneath his back during the Taylor assault escalated that pain
“to a whole other level.”157

171. It is credible that the explosion of a munitions device directly beneath one’s body
would cause more extensive trauma and more significant pain than being kicked in the
back, even repeatedly. Indeed, the Court doubts whether expert medical testimony is
necessary to substantiate this common-sense proposition.158

153 Salkind Test., Trial Tr. July 11, 2019, at 73–76.
154 Schwartz Test., Trial Tr. Aug. 12, 2019, at 125.
155 See Schwartz Test., Trial Tr. Aug. 12, 2019, at 128; Schwartz Test., Trial Tr. July 15, 2019, at 95–96; Salkind
Test., Trial Tr. July 11, 2019, at 26 (opining that Plaintiff’s pain was the combined result of the two attacks which
aggravated his previously asymptomatic lumbar degenerative disc disease).
156 See Gravette Test., Trial Tr. July 11, 2019, at 194–95.
157 Bistrian Test., Trial Tr. Aug. 8, 2019, at 93.
158 “[I]t is generally acknowledged that the complexities of the human body place questions as to the cause of pain or
injury beyond the knowledge of the average layperson. For a plaintiff to make out his cause of action in such a case,
172. In any event, moreover, the testimony of multiple experts did substantiate that
proposition.
173. Dr. Schwartz explained that he concluded in his expert report that Plaintiff “suffered
significant injures in the razor attack an[d] concussion grenade blast of October 12,
2006,” and that “[a]ll subsequent attempts at treating his back pain . . . are as a direct

consequence of the injuries suffered in that assault, . . . as there was no significant low
back premorbid[ity].”159
174. Dr. Schwartz further explained that he concluded in his expert report that Plaintiff’s
back condition was “a direct consequence of the clinical cascade that ensued
follow[ing] the second assault on Mr. Bistrian.”160
175. Dr. Schwartz further explained that he determined in his expert report that:
The detonation of the concussion device beneath his back, when [he] lay supine
in the recreation pen, was of sufficient force to cause damage to the lumbar
spine. His position at detonation ensure[d] that the blast effects were
concentrated where they could do the most damage. The sudden elevation
upward [and] the fall downward was almost as dangerous. . . . The
complications of the interventional pain management procedures were
consequent to the original injury.161
176. Dr. Schwartz clarified during his testimony that in his opinion, both the Northington
assault and the Taylor assault contributed to Plaintiff’s deteriorating back condition.162

therefore, the law requires that expert medical testimony be employed.” Hamil v. Bashline, 392 A.2d 1280, 1285
(Pa. 1968) (citations omitted). Even medical causation that appears intuitively obvious may require expert
testimony. See Kravinsky v. Glover, 396 A.2d 1349, 1354–55 (Pa. Super. Ct. 1979) (holding that the causation of the
plaintiff’s driving phobia, which began immediately after the car crash that was the subject of the suit, was not “such
an obvious, natural, or probable result of the car collision that a trier of fact could determine causation without the
aid of expert testimony”). Although it is not necessary to decide, as there is ample expert testimony in this case, the
causal link between back pain and a stun munition explosion directly under one’s back might be so obvious as not to
require experts at all.
159 Schwartz Test., Trial Tr. July 15, 2019, at 84.
160 Id. at 85.
161 Id. at 85–86.
162 Id. at 86, 93, 95–99, 100–01.
Dr. Schwartz did not, however, disavow or disagree with any of the assessments in his
expert report, which determined that the particular features of the stun munition
explosion in the Taylor assault were apt to cause traumatic pathology like that
experienced by Plaintiff and were likely an important cause of Plaintiff’s ongoing
condition.

177. After the initial recovery phase from the acute injuries Plaintiff sustained in the Taylor
assault, Plaintiff’s condition was relatively manageable for some time, slowly
deteriorating over a period of years. Eventually, Plaintiff’s physicians appropriately
recommended more aggressive and invasive treatment options, one of which triggered a
number of complications that produced further deterioration in Plaintiff’s condition.
178. After Plaintiff was released from prison in 2009, his condition was relatively stable for
several years, with chronic back pain that moderately interfered with his activities of
daily living.
179. Plaintiff first sought care for his back outside prison in November 2010, when he saw
Dr. Meciko Muharemovic, MD, at Hampton Medical Care.163

180. Dr. Muharemovic explained that during the period from 2010 to 2013, Plaintiff’s
condition did not change much. He had “chronic back pain” that was “basically
lingering” and “needed pain management.”164
181. Plaintiff was able to sustain a moderate level of physical activity during approximately
that same period. For example, he exercised daily, including going for long walks each
morning, and he occasionally played tennis and golf.

163 P-298 (Muharemovic Dep.) at 13.
164 Id. at 83.
182. Also during that period, Plaintiff began taking prescription pain medication, Percocet,
for back pain.165
183. The Court finds Plaintiff’s level of physical activity consistent with the kind and degree
of back pain he self-reported and was treated for during that period, especially
considering that Plaintiff was already taking prescription painkillers.

184. During that same time period, from approximately 2010-2013, Plaintiff also sought
chiropractic treatment and acupuncture for back pain.166
185. Around January 2014, after Plaintiff had been off prescription pain medications for
approximately 18 months,167 Plaintiff sought new treatment for back pain, as his pain
was no longer manageable in the absence of prescription pain medication.
186. Plaintiff was referred to Dr. Sathish Subbaiah, MD, for a surgical consult regarding his
back pain.168
187. Dr. Subbaiah determined, based on his examination of Plaintiff and the results of a CT
scan he ordered, that Plaintiff should undergo a course of epidural injections for back
pain prior to any surgery.169 Dr. Subbaiah referred Plaintiff to Dr. Juan Gargiulo, MD,

of the East End Pain Center to pursue that course of treatment.170
188. Dr. Gargiulo is a physician who is board certified in pain management.171

165 P-298 (Muharemovic Dep.) at 22; Bistrian Test, Trial Tr. July 10, 2019, at 24–25.
166 P-169 at 1, 33, 39; G-328; G-339; Schwartz Test., Trial Tr. July 15, 2019, at 90; Bistrian Test., Trial Tr. Aug. 12,
2019, at 49–50
167 See infra ¶¶ 219–32 (discussing Plaintiff’s bouts of opioid dependence).
168 Bistrian Test., Trial Tr. Aug. 7, 2019, at 95.
169 Id. at 96.
170 Id. at 95–96; P-297 (Gargiulo Dep.) at 33–34.
171 P-297 (Gargiulo Dep.) at 22–25.
189. By the time of Plaintiff’s first appointment with Dr. Gargiulo, Plaintiff was reporting
that his level of physical activity had decreased as his pain continued to worsen.172
190. Dr. Gargiulo treated Plaintiff with a course of transforaminal epidural steroid injections
intended to reduce nerve inflammation.173
191. Plaintiff experienced only mild improvement after the course of epidural injections.174

192. Because the epidural injections were mostly unsuccessful, Dr. Gargiulo recommended
that Plaintiff undergo a discogram, a diagnostic procedure in which dye is injected into
a disc between vertebrae in the spine to indicate whether the disc is intact or ruptured
and to measure pressure inside the disc.175
193. The results of the discogram Dr. Gargiulo performed were consistent with the type and
degree of pain Plaintiff was reporting.176
194. Based on the results of the discogram, Dr. Gargiulo recommended that Plaintiff
undergo a manual disc decompression procedure.177 Plaintiff underwent the disc
decompression on May 30, 2014.178

195. In the days and weeks following the decompression procedure, Plaintiff developed
worsening back pain and spasms with intermittent fevers, chills, and rigors.179

172 P-223 at 1.
173 P-297 (Gargiulo Dep.) at 34–36.
174 P-223 at 2; see Bistrian Test., Trial Tr. July 10, 2019, at 28.
175 P-297 (Gargiulo Dep.) at 64–65; Salkind Test., Trial Tr. July 11, 2019, at 23.
176 See P-297 (Gargiulo Dep.) at 69–73.
177 Id. at 79; P-223 at 2.
178 P-223 at 2.
179 P-183 at 1; see P-223 at 2–3.
196. Plaintiff returned to Dr. Gargiulo frequently over the eight weeks following the disc
decompression procedure with worsening pain and spasms. Dr. Gargiulo performed
trigger point injections for the severe acute pain and also prescribed narcotic pain
medications including oxycodone, Valium, Percocet, and Soma.180
197. In July 2014, Plaintiff was admitted to Southampton Hospital with a high fever,

symptoms of sepsis, and severe respiratory distress.181
198. CT scans taken in September 2014 showed destruction of bone and narrowing of the
disc space in Plaintiff’s spine and generally revealed changes since a January 2014 CT
scan that were consistent with osteomyelitis.182
199. Blood work from September 2014 indicated an inflammatory process in Plaintiff’s
body.183
200. In October 2014, Plaintiff was evaluated for worsening back pain and recurrent chills
and fever by Dr. Michael Henry, MD, an infectious disease physician at the Hospital
for Special Surgery in New York.184

201. At Dr. Henry’s recommendation, Plaintiff underwent a biopsy of the L2-L3 disc, the
suspected location of an infection resulting from the discogram procedure. The biopsy
was positive for a bacterial infection of the bone.185 Plaintiff was diagnosed with
discitis and osteomyelitis.186

180 P-223 at 2–3.
181 P-186 at 18.
182 P-229 at 5–6; P-254A; Ingerman Test., Trial Tr. July 12, 2019, at 15–16; Schwartz Test., Trial Tr. July 15, 2019,
at 19–23.
183 P-253A; Schwartz Test., Trial Tr. July 15, 2019, at 17–19.
184 P-302 (Henry Dep.) at 12–13, 17–19; P-93 at 1–4.
185 P-93 at 4; P-302 (Henry Dep.) at 33–34; Ingerman Test., Trial Tr. July 12, 2019, at 20–21.
186 P-93 at 4; see also Ingerman Test., Trial Tr. July 12, 2019, at 24–25.
202. Osteomyelitis is an infection of the bone. It is “excruciatingly painful,” producing a
“dramatic” increase in pain over a patient’s baseline pain level.187 Discitis is an
infection of the disc space.188 Plaintiff’s experts, including Plaintiff’s infectious disease
expert, Dr. Mark Ingerman, MD, concurred in these diagnoses.
203. Plaintiff’s discitis and osteomyelitis were most likely caused by the decompression

procedure performed by Dr. Gargiulo.189
204. Dr. Henry treated Plaintiff with a six-week course of intravenous antibiotics
administered through a percutaneous line implanted during an ultrasound-guided
procedure.190
205. Plaintiff experienced some improvement after that course of treatment, but the severe
pain recurred about six months later.191 Dr. Henry determined that Plaintiff had likely
experienced a relapse of osteomyelitis.192
206. In July 2015, Plaintiff underwent another six-week course of intravenous antibiotics to
treat the osteomyelitis recurrence, including the antibiotic daptomycin.193

207. This triggered a further complication: In the months following the second course of
antibiotics, Plaintiff was readmitted to Southampton Hospital on several occasions for

187 Salkind Test., Trial Tr. July 11, 2019, at 24–26.
188 Ingerman Test., Trial Tr. July 12, 2019, at 24–25.
189 P-93 at 10–11; Salkind Test., Trial Tr. July 11, 2019, at 23–26.
190 P-245A at 17–18; P-302 (Henry Dep.) at 41–42; Schwartz Test., Trial Tr. July 15, 2019, at 27–28.
191 P-93 at 15.
192 Id. at 15–16.
193 Id. at 15–16, 19; P-302 (Henry Dep.) at 86–92.
high fevers.194 The presumed diagnosis was daptomycin-induced pneumonitis, with
which Plaintiff’s experts concurred.195
208. Dr. Schwartz opined that Plaintiff suffers from peripheral neuropathy, which was likely
caused by the daptomycin administered to treat his osteomyelitis infection.196
Peripheral neuropathy is a disease of the smaller nerves of the arms and legs causing

diffuse loss of sensation to the extremities.197
209. The Court credits Dr. Schwartz’s opinion, which was based on his objective findings
after a second examination of Plaintiff in early 2019.198
210. Peripheral neuropathy caused by daptomycin is a permanent clinical finding; Plaintiff
will not recover from these symptoms.199
211. About a year after the 2015 daptomycin treatment, Plaintiff underwent a spinal surgery
“to debride the area and . . . relieve the nerve entrapment inflammation.”200
212. The surgery confirmed the diagnosis of discitis/osteomyelitis because the surgeon, Dr.
Andrew White, MD, noted the presence of an abscess and necrotic bone.201

213. Chronic osteomyelitis can only be cured by amputation. Amputation is impossible
when the infection is located in the spine.202

194 P-186 at 18.
195 P-180 at 1; D-159 at 3–7; Schwartz Test., Trial Tr. July 15, 2019, at 81.
196 Schwartz Test., Trial Tr. July 15, 2019 at 48–49.
197 Id. at 43–44.
198 Id. at 41–45.
199 Id. at 58.
200 Ingerman Test., Trial Tr. July 12, 2019, at 27.
201 Id. at 27–31; P-237 at 285–86.
202 Ingerman Test., Trial Tr. July 12, 2019, at 31–32.
214. Instead, Plaintiff’s condition will require lifetime suppressive antibiotic therapy to
control his infections and fevers.203
215. These cascading complications—the infection itself, which necessitated antibiotic
treatment, which in turn caused the peripheral neuropathy—were the result of the
decompression procedure, which was medically reasonable and necessary to relieve

Plaintiff’s underlying back pain.204 The underlying back pain was the direct result of
the traumas Plaintiff suffered in both the Northington and Taylor assaults.
216. The Taylor assault was a substantial factor in causing not only the acute back pain
Plaintiff suffered in the weeks and months after the assault, but also the “cascade” of
complications that resulted when he attempted to have it treated after his release.
217. Plaintiff has required extensive medical care in the past to treat and manage his
chronic pain and its follow-on complications caused by the Taylor assault, including
chiropractic care; pharmaceutical pain management; orthopedics; non-invasive and
invasive pain management procedures; emergency room visits; hospital admissions;

diagnostic testing and imaging; recurrent intravenous antibiotic therapy; infectious
disease care; neurological care; and surgery.205
218. In the future, Plaintiff will require further medical care to treat and manage his chronic
pain and its follow-on complications caused by the Taylor assault, including medical
care provided by pain management specialists, orthopedists, neurosurgeons, infectious
disease specialists, and physiatrists, among other specialists; therapeutic modalities,

203 P-253 at 419; Ingerman Test., Trial Tr. July 12, 2019, at 36–37; Salkind Test., Trial Tr. July 11, 2019, at 24;
Schwartz Test., Trial Tr. July 15, 2019, at 58.
204 See Salkind Test., Trial Tr. July 11, 2019, at 27.
205 See supra ¶¶ 179–214; see also Masterson Test., Trial Tr. July 16, 2019, at 148; P-134 at 4–9, 11–33.
including physical therapy; appropriate adaptive equipment, including adaptive
transportation equipment; diagnostic testing and laboratory studies; emergency room
visits; hospital admissions; part-time assistance by a personal care attendant; and
potential assisted living residential placement.206
iii. Opioid Dependence

219. Sometime after Dr. Muharemovic first prescribed Percocet, Plaintiff developed opioid
dependency.207
220. For a period of time, Plaintiff was treated by a dentist and prescribed Percocet.208
221. Dr. Muharemovic referred Plaintiff to Dr. Shawn Cannon, MD, an internal medicine
physician whose practice focuses on treating patients with opioid dependence.209
222. Dr. Cannon treated Plaintiff’s opioid dependence with a suboxone regimen.210
223. As part of his treatment with Dr. Cannon, Plaintiff saw Dr. James Sherwood, Ph.D., for
mental health treatment related to his opioid dependence.211
224. During and after treatment with Dr. Cannon and Dr. Sherwood, it appears Plaintiff did
not use narcotic pain medications for a period of twelve to eighteen months.212

206 Masterson Test., Trial Tr. July 16, 2019, at 149–63; P-134 at 10, 39–52.
207 Bistrian Test., Trial Tr. Aug. 7, 2019, at 161-163.
208 Id. at 95.
209 Id. at 148; see also P-298 (Muharemovic Dep.) at 51.
210 Bistrian Test., Trial Tr. Aug. 7, 2019, at 95, 97–98; see also P-296 (Sherwood Dep.) at 17–18; see generally G-
305(records related to Plaintiff’s controlled substance prescriptions and suboxone treatment), G-306 (same).
211 P-296 (Sherwood Dep.) at 13, 17–18.
212 Bistrian Test., Trial Tr. Aug. 12, 2019, at 85; see also P-296 (Sherwood Dep.) at 65–66; P-223 at 1 (recounting a
timeline that indicates that Plaintiff was not on narcotic pain medications when he first came to Dr. Gargiulo).
225. Dr. Gargiulo wrote Plaintiff multiple prescriptions for a variety of narcotic pain
medications after the disc decompression procedure,213 which had dramatically
increased Plaintiff’s level of back pain.
226. By early 2015, Plaintiff was again taking large amounts of a number of narcotic pain
medications daily.214 He returned to Dr. Cannon for another round of suboxone

treatment.215
227. By March 2016, Plaintiff was again taking large amounts of narcotics, this time
prescribed by Dr. Ralph Gibson, MD.216
228. At several points throughout Plaintiff’s treatment for back pain, Plaintiff has been
addicted to narcotic pain medications.
229. It is unclear to the Court, on this record, whether Plaintiff may have been filling
prescriptions for narcotic pain medications during periods where he was purportedly
being treated for addiction with suboxone.217
230. The only possible relevance of that finding, if such a finding could be made, would be
as a reflection on Plaintiff’s credibility as a historian of his own health.218

231. Even if it is true that Plaintiff is not a perfectly reliable historian of his own health,
however, the Court relies hardly at all on Plaintiff’s own testimony in finding that he

213 P-223 at 2.
214 P-223 at 116.
215 G-306-J; see also P-223 at 116.
216 Bistrian Test., Trial Tr. Aug. 7, 2019, at 98–99; P-299 (Gibson Dep.) at 15–18, 33–34.
217 See United States’ Proposed Findings of Fact and Conclusions of Law [Doc. No. 484] ¶¶ 289–98.
218 See also id. ¶¶ 274–88, 299–322. The government asks the Court to find that Plaintiff has “significant credibility
deficits” because, among other things, he allegedly asked one physician to add to or change medical records for
litigation purposes; because some symptoms Plaintiff claimed to have reported to certain physicians are missing
from those physicians’ records; because of inconsistencies in his account of his shoulder pain; because Plaintiff once
admittedly omitted information from a BOP form to avoid being sent to a different facility; and because Plaintiff
previously pled guilty to two counts of wire fraud. See id.
did indeed experience a “cascade” of complications, directly resulting from the
negligence of the officers at the FDC, that caused him excruciating back pain.219
232. Plaintiff is not malingering. Rather, the overwhelming weight of the credible, reliable
evidence shows that Plaintiff’s reported pain levels are consistent with clinical
observations.220

iv. Shoulder Injury
233. Plaintiff testified that he suffered a dislocated left shoulder in the Taylor assault.221
234. Plaintiff attributes some or all of his chronic shoulder pain to the Taylor assault.222
235. Plaintiff injured his shoulder playing college football, requiring surgery.223
236. In 2005, before the Northington and Taylor assaults, Plaintiff had complained to his
family that his shoulder was bothering him.224
237. Plaintiff’s shoulder was also injured in the Northington assault.225 Plaintiff popped his
shoulder back in by running up against a cement wall.226

219 Similarly, any probative value in Plaintiff’s criminal conviction for wire fraud, see Bistrian v. Levi, No. 08-3010,
2019 WL 8888190, at *2 (E.D. Pa. June 28, 2019) (ruling for purposes of the Bivens trial), is diminished by the
substantial corroboration of Plaintiff’s testimony in the opinions of the experts and in the objective evidence. While
the issue of Plaintiff’s credibility was hotly contested by the parties, the Court has found it almost entirely
unnecessary to simply take Plaintiff at his word.
220 Schwartz Testimony, Trial Tr. Aug. 12, 2019, at 125; Salkind Test., Trial Tr. July 11, 2019, at 37 (“[I]n
[Plaintiff’s] particular case, there was a clear cut correlation between the complaints, the objective findings, the
diagnostic studies, all correlated in Mr. Bistrian’s case.”).
221 Bistrian Test., Trial Tr. Aug. 7, 2019, at 53; see also Plaintiff’s Proposed Findings of Fact and Conclusions of
Law [Doc. No. 478] ¶ 137.
222 Plaintiff’s Proposed Findings of Fact and Conclusions of Law [Doc. No. 478] ¶ 132–64.
223 Bistrian Test., Trial Tr. Aug. 8, 2019, at 84.
224 Id. at 85–86.
225 Id. at 86.
226 Id.
238. There are no records of Plaintiff complaining of shoulder pain after the Taylor assault;
instead, his contemporaneous medical requests concerned his lacerations and back pain
and, perhaps, his psychological state.
239. Unlike the Northington assault, in which Plaintiff’s attackers repeatedly kicked him in
the shoulder, there was little evidence of any specific trauma to the shoulder in the

Taylor assault.
240. Dr. Schwartz opined that the Taylor assault exacerbated Plaintiff’s shoulder injury, but
allowed that in rendering his opinion he was primarily focused on Plaintiff’s back and
legs and “not so much” on Plaintiff’s shoulder.227
241. Dr. Schwartz was unaware of Plaintiff’s significant history of shoulder injury. Because
Dr. Schwartz’s opinion as to the shoulder injury in particular was not based on
complete information, the Court does not credit it.
242. Plaintiff has not met his burden of showing that the Taylor assault was a substantial
factor in causing or exacerbating his shoulder injury.

v. Hearing Damage
243. Plaintiff testified that he suffered a substantial or total loss of hearing in the Taylor
assault.228
244. During the Bivens trial, Plaintiff testified that his hearing loss began when he was
kicked in the head during the Northington assault.229
245. No expert witness has opined as to the cause of Plaintiff’s hearing loss.

227 Schwartz Test., Trial Tr. Aug. 12, 2019, at 112–13.
228 Bistrian Test., Trial Tr. Aug. 7, 2019, at 53.
229 Bistrian Test., Trial Tr. July 10, 2019, at 60.
246. Plaintiff has the burden to show that it was more likely than not that his hearing loss
was caused by the Taylor assault.
247. Plaintiff cannot meet the burden of showing medical causation without expert
testimony.
248. This is particularly so when Plaintiff himself has offered earlier, contradictory

explanations of causation.
249. No expert has testified that Plaintiff’s hearing was damaged in the Taylor assault.
250. So far as the record reflects, the damage to Plaintiff’s hearing is consistent with
multiple possible causes, including aging and family history.
251. Plaintiff has failed to meet his burden of showing that the Taylor assault was a
substantial factor in causing or exacerbating his hearing loss.
vi. Emotional and Psychological Harm
252. After the Northington assault, Plaintiff’s mental health was compromised. The
Northington attack and the stress of confinement in the SHU “weakened Mr. Bistrian’s

resilience to further stress” and “predisposed him” to an intensified psychological
response to additional trauma.230
253. The Court finds that the Taylor assault, which lasted for over two and a half minutes
and was halted only when a stun munition exploded underneath Plaintiff, is a trauma
sufficient to cause post-traumatic stress disorder (“PTSD”).231
254. As a direct result of the Taylor assault, Plaintiff suffered serious emotional and
psychological injuries, including PTSD.

230 Weiss Test., Trial Tr. Aug. 8, 2019, at 187–90.
231 Id. at 184–85 (testifying that video of the Taylor attack showed it to be “quite congruent with the degree of stress
that would constitute a psychic trauma under [psychiatric] criteria”)
255. Plaintiff’s daughter testified that when she visited him after the Taylor assault, she
found that he was “so frightened” and “didn’t feel protected.”232
256. In early 2008, Dr. Edulfo Gonzalez, MD, a staff psychiatrist at the FDC,233 assessed
Plaintiff while he was still incarcerated as having depression, anxiety, and PTSD.
Specifically, Dr. Gonzalez made a note that Plaintiff’s PTSD was associated with

having been “attacked by another [inmate].”234
257. Dr. Sherwood, whom Plaintiff saw for mental health treatment in conjunction with his
addiction treatment, diagnosed Plaintiff as having PTSD.235
258. The Court finds the testimony of Dr. Kenneth Weiss, MD, Plaintiff’s expert in
psychiatry and forensic psychiatry, credible. Dr. Weiss’s opinions were fully informed
after thoroughly reviewing the relevant information.236
259. Dr. Weiss opined that Plaintiff met the criteria for a diagnosis of PTSD.237

232 Karsch Test., Trial Tr. Aug. 7, 2019, at 12.
233 G-70 at 3.
234 P-52 at 4 (“A[ssessment]—depression/anxiety/PTSD (attacked by another I/M)[.]”); see P-291 (Reynolds Dep.)
at 27–28. The Court understands this note as referring to the Taylor assault, which had one perpetrator, rather than
the Northington assault, which had three perpetrators. As the government has repeatedly emphasized, references in
medical documentation to an assault by multiple inmates or a group of inmates likely refer to the Northington
assault, while references to a single inmate likely refer to the Taylor assault. See, e.g., United States’ Proposed
Findings of Fact and Conclusions of Law [Doc. No. 484] ¶¶ 223, 225–26.
235 P-296 (Sherwood Dep.) at 34–39.
236 Weiss Test., Trial Tr. Aug. 8, 2019 at 121–22, 180–81.
237 Weiss Test., Trial Tr. July 16, 2019, at 10, 13–14, 20–27. The government asks the Court to conduct its own
independent review of the diagnostic criteria for PTSD and to find that they are not met in Plaintiff’s case. See
United States’ Proposed Findings of Fact [Doc. No. 484] at ¶¶ 323–56. Given that qualified experts retained by both
parties opined on this exact issue—whether Plaintiff meets the diagnostic criteria for PTSD—the Court finds it more
appropriate to evaluate the reliability of those experts’ opinions than to attempt to conduct its own diagnostic
analysis. See supra note 158157; see also Borman v. Raymark Industries, 960 F. 2d 327, 333 (3d Cir. 1992) (quoting
Martin v. Owens-Corning Fiberglass Corp., 528 A.2d 947, 950 (Pa. 1987)) (stating that a lay person’s “common
sense and common experience . . . do not serve as substitutes for expert guidance,” and it is therefore improper to
disregard such expert testimony when deciding the facts of a case).
260. Dr. Weiss opined that the traumatic assaults Plaintiff experienced at the FDC were the
cause of his PTSD.238
261. Dr. Weiss specifically opined that Plaintiff’s PTSD was “made worse by the Taylor
attack.”239
262. Dr. Weiss noted that five physicians other than himself had evaluated Plaintiff and had

also reached the conclusion that he suffered from depression and PTSD as a result of
the traumatic assaults.240
263. Dr. Weiss testified that he and other physicians had witnessed Plaintiff becoming
“emotional, mostly in the direction of sad mood.”241
264. The Court rejects Dr. Barbara Ziv, MD’s testimony in this case as not credible and
thus unreliable.242
265. According to Dr. Ziv, the majority of the population experiences trauma, depression,
and anxiety.243 Yet most of these people do not have PTSD, which requires, not just
one traumatic experience, but repeated trauma “over a longer period of time.”244 In

238 Weiss Test., Trial Tr. July 16, 2019, at 14.
239 Weiss Test., Trial Tr. Aug. 8, 2019, at 173.
240 Weiss Test., Trial Tr. July 16, 2019, at 15–17.
241 Weiss Test., Trial Tr. Aug. 8, 2019, at 128–29.
242 Before trial, the Court issued an in limine ruling precluding parts of Dr. Ziv’s testimony. Bistrian v. Levi, 443 F.
Supp. 3d 576 (E.D. Pa. 2019). That ruling precluded Dr. Ziv from testifying that she believed Plaintiff was a
malingerer for a number of reasons, including that “[a] doctor cannot pass judgment on the [examinee’s] truthfulness
in the guise of a medical opinion, because it is the jury’s function to decide credibility.” Id. at 579 (quoting Coney v.
NPR, Inc., 312 F. App’x 469, 474 (3d Cir. 2009)). The Court permitted Dr. Ziv to testify as to her assessment that
Plaintiff does not have PTSD. Id. at 579–80. The Court noted that Plaintiff “object[ed] to her testimony relating to
PTSD as being overly dependent on her opinion that [Plaintiff] is a malingerer,” but ruled that “to the extent that Dr.
Ziv’s opinion as to PTSD is based on her assessment that Plaintiff does not display certain symptoms or respond to
memories of the events in question in a manner consistent with someone with PTSD, it is proper expert testimony.”
Id. at 580.
243 Ziv Test., Trial Tr. July 22, 2019, at 84–85.
244 Id. at 86.
sum, “PTSD is not just having something bad happen. It is a change in your brain
chemistry.”245
266. In concluding that Plaintiff does not have PTSD, Dr. Ziv inaccurately minimized
Plaintiff’s traumatic experiences at the FDC. Dr. Ziv’s conclusion that these
experiences are comparable to the general stress, anxiety, and depression experienced

by 90% of the population is not credible.246
267. Dr. Ziv’s testimony appeared to suggest that she disagreed with the official diagnostic
criteria for PTSD in the DSM-V, the most current version of the DSM, as well as that
she is generally skeptical of PTSD as a diagnosis.247 As a result, it was not always
clear whether Dr. Ziv was opining that Plaintiff did not meet the official diagnostic
criteria for PTSD or whether she was opining that Plaintiff did not meet her personal,
heightened criteria for PTSD.
268. Parts of Dr. Ziv’s testimony with respect to PTSD crossed the line into an area the
Court had specifically precluded, to wit, whether Plaintiff is a malingerer. For

example, while Dr. Ziv was permitted to testify that in her opinion Plaintiff did not
experience negative thoughts, which was inconsistent with a diagnosis of PTSD, she
was not permitted to testify that the purported absence of negative thoughts was
attributable to Plaintiff being a generally “grandiose” person who was “over-the-top in
his self-appraisal.”248 Because her testimony sometimes shaded into these specifically
precluded areas, the Court must take her opinions with a grain of salt.

245 Id. at 87.
246 See id. at 83–85, 112.
247 See id. at 83–85, 92–93.
248 Id. at 109–10.
269. Dr. Ziv’s account of the interview she conducted with Plaintiff particularly calls into
question the credibility of her opinions.
270. Dr. Ziv testified that she did not observe any signs of emotional distress on Plaintiff’s
part during the interview.249
271. Yet a paralegal from Plaintiff’s counsel’s law firm, who was present at this meeting,

had a much more specific recollection of Plaintiff’s demeanor. According to her, she
“witnessed Peter cry on, I’d say over a dozen times. Sometimes so emotionally that he
couldn’t go on.” He was in physical discomfort during these meetings, often having to
“stand up, shift in his chair, ask if he could move around a little bit.”250
272. Dr. Ziv’s testimony also indicated that she placed particular reliance on the reports of
Dr. Andrea Boardman, Ph.D., the FDC’s chief psychologist, and on her belief that
Plaintiff never reported any distress or symptoms consistent with PTSD to Dr.
Boardman while at the FDC.251
273. The Court finds, however, that Dr. Boardman’s interactions with Plaintiff were too

negligible to be relied upon and that it is highly questionable that Plaintiff never
alerted Dr. Boardman that he was in distress.
274. As chief psychologist at the FDC, Dr. Boardman’s main “area of clinical responsibility
was the Special Housing Unit.”252

249 Id. at 97.
250 Blair Test., Trial Tr. July 22, 2019, at 163–64.
251 Ziv Test., Trial Tr. July 22, 2019, at 103.
252 Boardman Test., Trial Tr. Aug. 8, 2019, at 24.
275. According to Dr. Boardman, FDC policy required that she make regular rounds of the
SHU and “engage every inmate” to find out whether “they had an interest” in having a
private meeting with her.253
276. Dr. Boardman’s rounds consisted of approaching each cell and asking the inmate
through the “grill” in the door whether they would like to speak with her.254 During

these rounds, Dr. Boardman was frequently accompanied by ten to twelve other FDC
staff who could all hear any conversation she might have with an inmate.255
277. Defense counsel questioned Dr. Boardman about Plaintiff’s deposition testimony
asserting that Dr. Boardman’s rounds were “like a joke” because she would ask
inmates only a single question: “Are you okay?”256 In her testimony, Dr. Boardman
appeared to agree that, unless an inmate specifically requested psychological follow-
up, she would merely ask, “Are you okay?” and move on.257
278. In fact, however, the governing regulations required BOP staff to “conduct a
psychiatric or psychological assessment, including a personal interview, when
administrative detention continues beyond 30 days.”258

253 Id. at 25.
254 Id. at 25–26.
255 Id. at 35–36.
256 Id. at 27–30.
257 Id. at 30–31.
258 28 C.F.R. § 541.22(c) (2006) (emphasis added); see also Dixon v. Zenk, No. 05-3127, 2008 WL 2437841, at *6
(E.D.N.Y. June 16, 2008) (referring to the government’s interpretation of the “personal interview” requirement as
being satisfied by assessments conducted through the cell door as a “strained reading of the regulation,” but
concluding that the personal interview requirement of the regulation, unlike the periodic review of administrative
segregation status, was not part of the protected due process liberty interest).
279. Dr. Boardman testified that she believed the “personal interview” requirement was
fully satisfied by her weekly rounds consisting of a single question.259
280. The Court does not find credible Dr. Boardman’s hairsplitting distinction between a
“clinical interview,” which could not be satisfied by asking a single question through a
cell door, and a “personal interview,” which supposedly could be satisfied in that

cursory manner.260
281. Dr. Boardman’s rounds, as she described them, were wholly inadequate to identify
inmates in distress, and to the extent that Dr. Ziv relied on the absence of self-reported
distress in these single-question “interviews,” Dr. Ziv’s conclusions are themselves
questionable at best.
282. Dr. Boardman also testified that she did not recall any occasion during Plaintiff’s time
in the SHU when he needed or requested psychological services.261 That directly
contradicts both Plaintiff’s own recollection—that he stated he was not okay on “more
than ten” occasions262—and the evaluations of FDC psychiatrists and independent
psychiatrists who evaluated Plaintiff during his time in the SHU.263

283. Moreover, even if Plaintiff never responded to Dr. Boardman’s inquiry of “Are you
okay?” with a request for further psychological services, that is not an indication that
Plaintiff was not in distress—instead, it is entirely credible that he may have felt
requesting mental health treatment under these circumstances was futile.264

259 Boardman Test., Trial Tr. Aug. 8, 2019, at 39–42.
260 See id. at 39–40.
261 Id. at 27–30.
262 Id. at 28–29.
263 Weiss Test., Trial Tr. July 16, 2019, at 15–17.
264 Weiss Test., Trial Tr. Aug. 8, 2019, at 193–94.
284. Further, Dr. Boardman initially testified that she was not present at the Taylor assault,
but a contemporaneous memorandum she wrote showed that she responded to the
assault while it was in progress and witnessed the pepper spray and stun munition
being deployed.265
285. These contradictions regarding whether Dr. Boardman was present at the Taylor

assault and whether Plaintiff ever indicated that he needed mental health services cast
further doubt on the reliability of Dr. Boardman’s reports and testimony and, to the
extent that Dr. Ziv relied on Dr. Boardman’s reports and impressions, on the reliability
of Dr. Ziv’s opinions.
286. Moreover, in relying on Dr. Boardman’s conclusions, Dr. Ziv appeared to embellish
Dr. Boardman’s own accounts of her “interviews” of Plaintiff. For example, when
asked whether Dr. Boardman’s cursory and infrequent interviews were an adequate
basis to evaluate Plaintiff’s condition, Dr. Ziv speculated that Dr. Boardman “could
have” also interacted with Plaintiff beyond the limited interactions in the SHU that Dr.

Boardman had recorded, even though Dr. Boardman specifically testified that she did
not recall ever interacting with Plaintiff beyond her single-question “interviews” and
“exchang[ing] pleasantries.”266 To the extent that Dr. Ziv rested her conclusions on
speculation about how much Plaintiff and Dr. Boardman could theoretically have
interacted, that casts further doubt on the reliability of Dr. Ziv’s opinions.
287. The Taylor assault was a substantial factor in causing Plaintiff’s PTSD. The
Northington assault was also a substantial factor in causing Plaintiff’s PTSD.

265 Boardman Test., Trial Tr. Aug. 8, 2019, at 31–34.
266 Ziv Test., Trial Tr. July 22, 2019, at 136; Boardman Test., Trial Tr. Aug. 8, 2019, at 43.
288. Plaintiff has required psychological and counseling services in the past to treat and
manage his PTSD caused by the Taylor assault.
289. In the future, Plaintiff will require further psychological and counseling services to
treat and manage his PTSD caused by the Taylor assault.267
vii. Plaintiff’s Professional and Personal Life After Prison

290. During the period from 2009-2013, Plaintiff maintained a good relationship with his
parents.268
291. During this time period, Plaintiff rebuilt his relationships with his children.269
292. During this time period, Plaintiff met and married his wife, Michelle.270
293. During this time period, Plaintiff was briefly employed at Health Management
Concepts, a company owned by a family friend.271
294. Plaintiff’s efforts to resume a normal life and repair his family connections are not
evidence that he was not in pain or suffering from mental illness.
295. Plaintiff’s periodic lapses in treatment are not evidence that he is malingering.272 The

Court finds that these lapses were often due to factors beyond Plaintiff’s control,
including financial limitations and concerns about the perceived or actual skill of his
physicians.273 Moreover, any inability on Plaintiff’s part to manage the logistics of
maintaining continuous care for multiple complex medical conditions strikes the Court

267 Masterson Test., Trial Tr. July 16, 2019, at 150.
268 Bistrian Test., Trial Tr. July 10, 2019, at 51; Ziv Test., Trial Tr. July 22, 2019, at 102; Bistrian Test., Trial Tr.
Aug. 12, 2019, at 48.
269 Weiss Test., Trial Tr. Aug. 8, 2019, at 135.
270 Bistrian Test., Trial Tr. Aug. 7, 2019, at 91; Weiss Test., Trial Tr. Aug. 8, 2019, at 135.
271 Bistrian Test., Trial Tr. Aug. 12, 2019, at 66, 70, 130–31.
272 Weiss Test., Trial Tr. Aug. 8, 2019, at 163–164, 190–193.
273 Id. at 195–96.
as entirely consistent with depression, PTSD, and limited functioning due to chronic
pain.
296. Plaintiff’s attempts to obtain a book deal are not evidence that he does not have
PTSD.274
viii. Reasonable Value of Past and Future Costs of Care

297. Plaintiff has incurred $251,340.81 in reasonable and necessary past costs of care caused
by the Taylor assault.
298. Plaintiff will incur $1,000,000.00 in reasonable and necessary future costs of care
caused by the Taylor assault.
299. Plaintiff has endured past pain and suffering and will suffer from pain and loss of life’s
pleasures in the future.
II. CONCLUSIONS OF LAW
A. The Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”) waives the sovereign immunity of the United

States where negligent or wrongful acts or omissions of government employees, acting within
the scope of their employment, cause injury to others.275 The FTCA “provides a mechanism for
bringing a state law tort action against the federal government in federal court.”276 “[T]he extent
of the United States’ liability under the FTCA is generally determined by reference to state

274 Id. at 130–32, 196–97.
275 28 U.S.C. § 1346(b)(1). This Court has jurisdiction over Plaintiff’s FTCA claims based on a federal question
under 28 U.S.C. § 1331 and pursuant to 28 U.S.C. § 1346(b) because the claims arise from personal injuries
allegedly caused by the negligence of federal employees while acting within the scope of their employment.
Imbrenda v. United States, No. 07-3663, 2008 WL 879857, at *5 (E.D. Pa. Mar. 8, 2008). Venue is proper pursuant
to 28 U.S.C. § 1402(b). Seidman v. United States, No. 95-6995, 1996 WL 421905, at *2 (E.D. Pa. July 24, 1996).
276 In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 362 (3d Cir. 2001).
law.”277 As a result, the Pennsylvania law of torts controls this action, and the liability of the
United States is to be determined under Pennsylvania law as though the government were a
private party.278
“To prevail under Pennsylvania negligence law, a plaintiff must show a duty, breach of
duty, actual loss or harm, and a causal connection between the breach and the harm.”279 The

government’s duty of care in cases involving federal prisoners is one of ordinary diligence.280
More specifically, the correctional institution’s duty to a federal inmate is “to exercise reasonable
care and diligence to protect the prisoner from danger, known to or which might reasonably be
apprehended by [the government].”281
B. The Government was Negligent and the Discretionary Function Exception
Does Not Shield It from Liability

i. The Discretionary Function Exception
The FTCA waives sovereign immunity for claims related to injuries “caused by the
negligent or wrongful act or omission of any employee of the government while acting within
the scope of his office or employment.”282 This waiver, however, does not apply to claims based
upon the performance of, or failure to perform, a discretionary function.283 The government has

277 Id. (quoting Molzof v. United States, 502 U.S. 301, 305 (1992)).
278 See 28 U.S.C. § 1346(b)(1); Alston v. United States, No. 02-1259, 2004 WL 764784, at *4 (E.D. Pa. Mar. 31,
2004).
279 Alston, 2004 WL 674684, at *4 (citing Redland Soccer Club, Inc. v. Dep’t of the Army, 55 F.3d 827, 851 n.15 (3d
Cir. 1995)).
280 Harris v. Federal Bureau of Prisons, 779 F. App’x 72, 74 (3d Cir. 2019); Millbrook v. United States, 8 F. Supp.
3d 601, 616 (M.D. Pa. 2014).
281 Turner v. Miller, 679 F. Supp. 441, 443 (M.D. Pa. 1987) (quoting Hossic v. United States, 682 F. Supp. 23, 25
(M.D. Pa. 1987)) (emphasis omitted).
282 28 U.S.C. § 1346(b)(1).
283 28 U.S.C. § 2680(a).
the burden of proving the applicability of the discretionary function exception.284 In determining
whether the discretionary function exception applies, the Third Circuit has instructed courts to
use the two-step Mitchell analysis.285
At step one, a court must determine whether the act giving rise to the alleged injury
involved “an element of judgment or choice.”286 If a “federal statute, regulation, or policy

specifically prescribes a course of action for an employee to follow,” and the employee did not
follow it, the discretionary function exception does not apply because the employee had no
choice but to follow the directive.287 If this is the case, the government is not immune from
liability, and the inquiry is complete.
Where a specific course of action is not prescribed, the court at step two considers
whether the action at issue “is of the kind that the discretionary function exception was designed
to shield,”288 which, in general, are actions and decisions based on public policy
considerations.289 The “focus of the inquiry is not on the agent’s subjective intent in exercising
the discretion conferred by statute or regulation, but on the nature of the actions taken and on
whether they are susceptible to policy analysis.”290 In other words, the discretionary function

exception does not apply every time there is a choice between courses of action, but it
immunizes from second-guessing decisions grounded in social, economic, and political

284 Cestonaro v. United States, 211 F.3d 749, 756 n.5 (3d Cir. 2000) (quoting Nat’l Union Fire Ins. v. United States,
115 F.3d 1415, 1417 (9th Cir. 1997)).
285 Mitchell v. United States, 225 F.3d 361, 363-364 (3d Cir. 2000) (citing United States v. Gaubert, 499 U.S. 315,
322–323 (1991)).
286 Id. at 363.
287 Gaubert, 499 U.S. at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)).
288 Id. at 322–323 (quoting Berkovitz, 346 U.S. at 534).
289 Gray v. United States, 486 F. App’x 975, 977 (3d Cir. 2012) (citing S.R.P v. United States, 676 F.3d 329, 333 (3d
Cir. 2012)).
290 Gaubert, 499 U.S. at 325.
policy.291 Thus, at issue in step two is whether the purportedly negligent act was a product of a
choice motivated by considerations of public policy. The Third Circuit has held that this analysis
is “not a toothless standard that the government can satisfy merely by associating a decision with
a regulatory concern.”292 Rather, the government must establish that the challenged conduct is
“grounded in the policy of the regulatory regime,” and “based on the purposes that the . . .

regime seeks to accomplish.”293
The Third Circuit has also noted that “if the discretionary function exception is given an
overly broad construction, it could easily swallow the FTCA’s general waiver of sovereign
immunity and frustrate the purpose of the statute.”294 Therefore, “where the Government is
aware of a specific risk and responding to that risk would only require the Government to take
garden-variety remedial steps, the discretionary function exception does not apply.”295
The Third Circuit has consistently ruled, however, that the discretionary function
exception is especially expansive for prison officials and has rarely found that an officer’s action
was not grounded in public policy concerns or covered by what the exception was intended to

protect. Correctional officers have broad discretion in the management of prisons, and as such,
courts have given wide-ranging deference to prison officials’ decisions when a policy does not
prescribe a specific course of action because such “discretion is needed to preserve internal
discipline and maintain institutional security.”296 Prison officials must constantly assess risks and

291 Gray, 486 F. App’x at 977.
292 S.R.P., 676 F.3d at 336 (quoting Cestonaro, 211 F.3d at 755).
293 Id. (quoting Gaubert, 499 U.S. at 325).
294 Id. at 338.
295 Id. at 340.
296 Donaldson v. United States, 281 F. App’x 75, 77 (3d Cir. 2008) (citing Bell v. Wolfish, 441 U.S. 520, 547–548
(1979)).
prioritize them, tasks that “implicate social and public-policy considerations.”297 Moreover,
assessing and resolving risks and protecting inmates must also always be balanced with inmates’
rights, a crucial public policy consideration.298 Even unwise and foolish correctional decisions
may be matters of prison security which the discretionary function exception was meant to shield
and immunize.299

ii. Failure to Collect the Razor
The policy governing the distribution and collection of razors in the SHU is set forth in a
Post Order, an institution-specific document that institutes and implements BOP policy. The
razor policy provides that:
Officers are required to account for all razors utilized during the day. Razors
will be inventoried via bin card to insure accountability.

Officers will place a razor sign on the cell door of any inmate being issued a
razor. Inmates will have 10 minutes to shave and return the razor. Officers
will inspect the razor upon return to ensure the blade is still intact.300

In Gray v. United States, the Third Circuit held that the failure to retrieve a razor from an
inmate at a prison was not a discretionary function.301 In support, the Court pointed to the BOP
“Program Statement 5217.01,” which provides that each institution with a “Special Management
Unit,” as the facility at issue had, “will develop an Institution Supplement that addresses local

297 Alfrey v. United States, 276 F.3d 557, 565 (9th Cir. 2002) (cited in Donaldson, 281 F. App’x at 78).
298 Graham v. United States, No. 97-1590, 2002 WL 188573 at *4 (E.D. Pa. Feb. 5, 2002) (citing Calderon v. United
States, 123 F.3d 947, 951 (7th Cir. 1997)).
299 See id. (finding that the discretionary function exception applied to officers’ “foolish” decision to allow inmates
access to razor blades and violent films); see also Rivera v. United States, No. 12-1339, 2013 WL 5492483 at *9–10
(M.D. Pa. Oct. 2, 2013) (arguing that officers’ decision to not separate inmates in a rec pen and not to intervene
immediately in the ensuing assault was covered by the discretionary function exception); Green v. United States,
No. 94-5706, 1995 WL 574495 at *3–4 (E.D. Pa. Sept. 22, 1995) (finding that officers’ decision to house an inmate
accused of sexual assault together with another inmate was protected by the discretionary function exception); see
also Donaldson, 281 F. App’x at 76–77.
300 P-305 at 7; see also P-310 at 120–121.
301 486 F. App’x 975, 977–78 (3d Cir. 2012).
operations and procedures.”302 Such a Supplement was issued pursuant to this Program
Statement, and it provided that “razors will be controlled by staff and that specific rules outlining
procedures for showers are addressed in the SMU Handbook.”303 This Handbook, in turn, stated
that an inmate will be issued a razor while showering if he wishes to shave, and “[a]ll razors will
be accounted for and disposed of at the end of the shower.”304 The Third Circuit held that the

language used prescribed a specific course of action that did not leave any room for the officers
to utilize “any element of judgment or choice” when retrieving razors.305
The language of the razor policy here is even more specific than the language in Gray.
The FDC’s razor policy expands on the requirement that officers account for all razors by
specifically prescribing the manner in which that accounting is to take place. Officers must
indicate who has received a razor by placing a magnet on the cell door; they must inspect the
razor upon collecting it to ensure it is intact; and, crucially, this must all take place within a ten-
minute time frame that limits inmates’ opportunity to tamper with or conceal razors. The
mandatory language and specific instructions leave no room for discretion. It cannot be disputed

that the razor policy is mandatory.
The government offers two arguments, as far as the Court can tell, in support of its
contention that the ten-minute instruction was not a mandatory policy. First, it has appeared to
argue that the language of the ten-minute rule is directed to inmates, not to correctional
officers.306 Second, it argues that the language of the rule sets a minimum allotment of time in

302 Id. at 977.
303 Id.
304 Id. at 977–978.
305 Id. at 978.
306 See United States’ Mem. Opp. Mot. for Adverse Inference [Doc. No. 424] at 30.
which inmates may shave, not a maximum that would require correctional officers to cut inmates
off at precisely ten minutes.307 Neither of these is a plausible construction of the plain text of the
rule.
Regarding the first argument, the Third Circuit in Gray specifically rejected the argument
that the Handbook only acted as a guide to the inmates at the institution.308 That holding applies

with even more force here, as the ten-minute rule appears in a post order—a document that sets
out rules for correctional officers as they carry out their job duties—not in an inmate guide.
Moreover, a defining feature of life as an inmate is a lack of control over one’s environment and
daily schedule; by definition, SHU inmates can only return a razor when a correctional officer
comes around to their cell door and offers to collect it.
As to the second argument, the government’s reading disregards the latter part of the
sentence, which reads in full: “Inmates will have ten minutes to shave and return the razor.” If
the post order simply said, “Inmates will have ten minutes to shave,” one might argue that the
rule is ambiguous, setting either a floor or a ceiling—either the inmates will be guaranteed no

less than ten minutes to shave, or the inmates will be required to complete their shaving within
ten minutes. Instead, however, the rule’s ten-minute time limit plainly covers both shaving and
returning the razor—otherwise, the phrase “and return the razor” is left dangling, with no
grammatical place in the sentence structure. In sum, the razor policy imposed a mandatory
requirement that officers account for all razors issued by, among other things, collecting razors
no more than ten minutes after distributing them.

307 United States’ Proposed Findings of Fact and Conclusions of Law [Doc. No. 484] at ¶¶ 9–11.
308 486 F. App’x at 978.
The officers’ failure to adhere to the policy amounts to negligence. Through sheer
carelessness, FDC officers breached their duty to collect the razor promptly at the end of the ten-
minute limit on August 22, 2006, dramatically increasing Aaron Taylor’s opportunity to conceal
a razor.309 Nor did they comply with the mandatory requirement to “account for all razors used
during the day.” When Taylor refused to return the razor, the record shows, the officers assumed

he had flushed it and accordingly conducted a cursory “shakedown” that failed to find the razor
that, according to Taylor himself, could readily have been discovered. The government is liable
for that negligence, which proximately caused the assault on Plaintiff.310
iii. Failure to Search Taylor Outside His Cell
The policy governing searches of inmates is set forth in several BOP policy documents.
FDC SHU policies mandated that “all inmates will be pat searched upon exiting their cell for any
reason, no exceptions,”311 and that “upon departing to and returning from outside recreation,
inmates will be screened with a hand-held metal detector.”312 Moreover, BOP policies required
officers to perform pat- and wand-searches in specific ways. BOP policy provided that “when

using the hand-held metal detector, staff must closely check body cavity areas, i.e., mouth, nose,
ear, rectum, and vagina.”313 An FDC Philadelphia Post Order in effect at the time of the attack
also instructed:

309 P-303 at 38.
310 Moreover, even if the Court were to credit Taylor’s account—that he obtained the razor he used to attack Plaintiff
when a correctional officer mistakenly gave him two razors and collected only one—the Court would still conclude
that this was a violation of the mandatory policy that all razors be accounted for and a failure to exercise reasonable
care, and would hold the United States liable.
311 P-305 at 2; see also Griffiths Test., Trial Tr. Aug. 20, 2019, at 32-33 (stating that wand- and pat-searching
inmates as they came out of their cells were not discretionary practices, but the decision to perform a strip search
was discretionary and based on reasonable cause).
312 P-28 at 14.
313 Id. at 11.
Pat searches should be conducted by staff from behind the inmate in order to
give staff an advantage in terms of protecting themselves. Before starting this
type of search, the inmate should remove the contents of his pockets and
remove his cap. The cap and personal effects removed from his pockets
should be inspected, then the complete search should be conducted as
follows:

A. Have the inmate face away from you with arms extended and his feet
apart at least twelve inches.

B. Use both hands and start at the back of the head, follow a direct course
across the back of the arms to the hands, then across the front of the
arms to the shoulders.

C. Return your hands to the original starting position and cover the
shoulders, back and sides to the belt line. Search the belt line, metal tip,
pockets, and chest area.

D. From the back at the wa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10399638. Public record. Not legal advice.