Bone v. Ebbert

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

LAVELL BONE, :

Plaintiffs : CIVIL ACTION NO. 3:19-0112

v. : (JUDGE MANNION)

WARDEN EBBERT, et al., :

Defendants :

MEMORANDUM

I. Background

Plaintiff, an inmate formerly confined in the United States Penitentiary,

Lewisburg, Pennsylvania1, filed the above captioned Bivens2 action. (Doc.

1). The action proceeds via an amended complaint. (Doc. 25). The named

Defendants are Warden David J. Ebbert; Mid-level Provider Jessie Ayers;

Lieutenant Matthew Saylor; Associate Warden Danon Colbert; Chief

Psychologist Jennifer Enigk; Correctional Officer Edinger; Dr. Brockman; Dr.

Eigenbrode and the United States. Id. Plaintiff alleges that staff fabricated an

1 Plaintiff is currently housed in the United States Penitentiary,

Coleman, Florida.

2 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct.

1999, 29 L.Ed.2d 619 (1971). In Bivens, the Supreme Court created a limited

federal tort counterpart to the remedy created by 42 U.S.C. §1983 as it

applies to federal officers. A Bivens civil rights action under §1331 has the

same standards as a §1983 civil rights action. See Paton v. La Prade, 524

incident report against him on July 16, 2018, resulting in his placement in

excessively tight restraints and pain in his left wrist. Id. He also alleges that

medical staff refused to treat his wrist pain, ignored his sick call requests,

and would not give him proper medication for the pain. Id. Finally, Plaintiff

claims that staff misdiagnosed his anxiety and refused to medicate him and

his complaint to the Warden, Associate Warden and Chief Psychologist went

unanswered. Id. For relief, Plaintiff seeks a transfer for medical and

psychological treatment, as well as damages. Id.

Presently before the Court is Defendants’ motion to dismiss and for

summary judgment. (Doc. 29). The motion has been fully briefed and is ripe

for disposition. For the reasons that follow, the Court will grant Defendants’

motion to dismiss and for summary judgment.

II. Standards of Review

a. Summary Judgment

Federal Rule of Civil Procedure 56(a) requires the court to render

summary judgment “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “[T]his standard provides that the mere existence

of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement

is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).

A disputed fact is “material” if proof of its existence or nonexistence

would affect the outcome of the case under applicable substantive law. Id. at

248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An

issue of material fact is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at

257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am.,

927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact,

the court must view the facts and all reasonable inferences in favor of the

nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v.

Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse

Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary

judgment, however, the nonmoving party may not rest on the

unsubstantiated allegations of his or her pleadings. When the party seeking

summary judgment satisfies its burden under Rule 56 of identifying evidence

which demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required by Rule 56 to go beyond his pleadings with

affidavits, depositions, answers to interrogatories or the like in order to

demonstrate specific material facts which give rise to a genuine issue.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the

motion “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Electric Indus. Co. v. Zenith Radio,

475 U.S. 574, 586 (1986). When Rule 56 shifts the burden of production to

the nonmoving party, that party must produce evidence to show the

existence of every element essential to its case which it bears the burden of

proving at trial, for “a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d

846, 851 (3d Cir. 1992).

In determining whether an issue of material fact exists, the court must

consider the evidence in the light most favorable to the nonmoving party.

White, 826 F.2d at 59. In doing so, the Court must accept the nonmovant’s

allegations as true and resolve any conflicts in his favor. Id. (citations

omitted). However, a party opposing a summary judgment motion must

comply with Local Rule 56.1, which specifically directs the oppositional party

to submit a “statement of the material facts, responding to the numbered

paragraphs set forth in the statement required [to be filed by the movant], as

to which it is contended that there exists a genuine issue to be tried”; if the

nonmovant fails to do so, “[a]ll material facts set forth in the statement

required to be served by the moving party will be deemed to be admitted.”

L.R. 56.1. A party cannot evade these litigation responsibilities in this regard

simply by citing the fact that he is a pro se litigant. These rules apply with

equal force to all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL

2853261, at *5 (M.D. Pa. July 20, 2010) (pro se parties “are not excused

from complying with court orders and the local rules of court”); Thomas v.

Norris, No. 02-CV-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006)

(pro se parties must follow the Federal Rules of Civil Procedure).

b. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure

12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes the Court to

dismiss an action for lack of subject matter jurisdiction. Motions brought

under Rule 12(b)(1) may present either a facial or factual challenge to the

Court’s subject matter jurisdiction. Gould Elecs., Inc. v. United States, 220

F.3d 169, 176 (3d Cir. 2000). In reviewing a facial challenge under Rule

12(b)(1), the standards associated with Rule 12(b)(6) are applicable. See id.

In this regard, the Court must accept all factual allegations in the complaint

as true, and the Court may consider only the complaint and documents

referenced in or attached to the complaint. In a factual challenge to the

Court’s subject matter jurisdiction, the Court’s analysis is not limited to the

allegations of the complaint, and the presumption of truthfulness does not

attach to the allegations. Mortensen v. First Fed. Sav. & Loan Ass’n, 549

F.2d 884, 891 (3d Cir. 1977). Instead, the Court may consider evidence

outside the pleadings, including affidavits, depositions, and testimony, to

resolve any factual issues bearing on jurisdiction. Gotha v. United States,

115 F.3d 176, 179 (3d Cir. 1997).

Once the Court’s subject matter jurisdiction over a complaint is

challenged, the plaintiff bears the burden of proving that jurisdiction exists.

Mortensen, 549 F.2d at 891. If a dispute of material fact exists, “the [C]ourt

must conduct a plenary hearing on the contested issues prior to determining

jurisdiction.” McCann v. Newman Irrevocable Tr., 458 F.3d 281, 290 (3d Cir.

2006); see also Berardi v. Swanson Mem’l Lodge No. 48, 920 F.2d 198, 200

(3d Cir. 1990) (stating that a district court must ensure that a plaintiff has

“had an opportunity to present facts by affidavit or by deposition, or in an

evidentiary hearing,” to support his claim of jurisdiction (citation omitted)).

c. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure

12(b)(6).

Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure to

state a claim upon which relief can be granted.” Under Rule 12(b)(6), we

must “accept all factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any reasonable

reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(quoting Phillips v.

County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint

need only contain “a short and plain statement of the claim,” Fed.R.Civ.P.

8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead “enough facts

to state a claim to relief that is plausible on its face.” Id. at 570. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft

v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels

and conclusions” are not enough, Twombly, 550 U.S. at 555, and a court “is

not bound to accept as true a legal conclusion couched as a factual

allegation.” Id. (quoted case omitted). Thus, “a judicial conspiracy claim must

include at least a discernible factual basis to survive a Rule

12(b)(6) dismissal.” Capogrosso v. The Supreme Court of New Jersey, 588

F.3d 180, 184 (3d Cir. 2009) (per curiam).

In resolving the motion to dismiss, we thus “conduct a two-part

analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual

elements from the legal elements and disregard the legal conclusions. Id. at

210-11. Second, we “determine whether the facts alleged in the complaint

are sufficient to show that the plaintiff has a “plausible claim for relief”.” Id. at

211 (quoted case omitted).

III. Statement of Undisputed Facts

On July 9, 2018, Plaintiff, Lavell Bone (Bone), was transferred to the

Special Management Unit (SMU) at the USP-Lewisburg. (Doc. 48-1). Public

Information Inmate Data).

On July 13, 2018, Bone met with Dr. Edinger regarding his fourteen

(14) Day Physician Evaluation Encounter. (Doc. 48-1 at 234, Clinical

Encounter). They discussed Bone’s chronic conditions and medications. Id.

Dr. Edinger specifically noted Bone’s lack of an active mental health

diagnosis. Id. Although Bone reported hearing voices telling him to do things,

he could not elaborate on any further psychotic symptomology when

pressed. Id. Dr. Edinger noted that Bone denied suffering from panic attacks

3 The Local Rules of Court provide that in addition to filing a brief in

opposition to the moving party’s brief in support of its motion, “[t]he papers

opposing a motion for summary judgment shall include a separate, short and

concise statement of material facts responding to the numbered paragraphs

set forth in the statement [of material facts filed by the moving party]...as to

which it is contended that there exists a genuine issue to be tried.” M.D. Pa.

L.R. 56. 1. The Rule further requires the inclusion of references to the parts

of the record that support the statements. Id. Finally, the Rule states that the

statement of material facts required to be served by the moving party will be

deemed to be admitted unless controverted by the statement required to be

served by the opposing party. See id. Unless otherwise noted, the factual

background herein is taken from Defendants’ Rule 56.1 statement of material

facts. (Doc. 48). Plaintiff did not file a response to Defendants’ statement of

facts in compliance with M.D. Pa. L.R. 56.1 or a statement of material facts

to support his own motion for summary judgment. Thus, the Court deems the

facts set forth by Defendants to be undisputed. See M.D. Pa. LR 56. 1; Fed.

R. Civ. P. 56(e)(2).

during his initial assessment and that his complaints of physical pain do not

clinically correlate to Plaintiff’s alleged anxiety. Id. A review of Bone’s medical

record indicates repeated, self-inflicted wounds to his left wrist and forearm.

(Doc. 48-1 at 239, Bureau Electronic Medical Record ("BEMR") excerpts

from 2018). Bone previously reported pain and tingling in his left wrist while

admitting to cutting his forearm. Id.

On July 16, 2018, at approximately 7:10 pm, Lt. Shirk issued Plaintiff

Incident Report Number 3146631 for threatening another with bodily harm,

in violation of Code 203 and refusing an order, violation of Code 307. (Doc.

48-1 at 14, Incident Report). Specifically, the misconduct charged Plaintiff as

follows:

On Monday, July 16, 2018, at approximately 7:10pm, Inmate

Bone, Lavell #60154-019 refused to submit to hand restraints so

that an incoming off the bus could enter cell G-324. Specifically,

inmate Bone refused my orders to submit to hand restraints in

order for a cellmate assignment to enter his cell. At this time,

inmate Bone got agitated and stated, “I am not taking a cellmate!

I will hog tie them and fuck them up if you put anyone in here with

me. Check my history. I am not playing! By stating this, it

demonstrates that inmate Bone was threatening bodily harm to

another individual and refused staff orders to submit to hand

restraints.

Id. Due to inmate Bone refusing staff’s orders, displaying signs of imminent

violence, showing he was not in control of himself physically or emotionally,

and a documented STG assignment of having a history of defeating

restraints, the Warden was notified and authorized a Use of Force Team4 to

be assembled in order to place inmate Bone into four-point restraints. (Doc.

48-1 at 10, Form 583 Report of Incident).

At approximately 7:58 p.m., a Use of Force Team was assembled, and

confrontation avoidance procedures were initiated with positive results. (Doc.

48-1 at 12, Report of Incident and Doc. 48-1 at 27, Video submitted under

Seal). Inmate Bone submitted to hand restraints, was removed from the cell,

and placed into leg restraints. Id. He was then escorted to J-Block, cell #327,

where he was visually searched, metal detector searched, photographed,

placed into new clothes and placed into 4-point restraints at approximately

8:19 p.m. Id. After the restraints were applied, Defendant (Lieutenant) Saylor

and medical staff checked the restraints and determined them to be properly

applied. Id. Inmate Bone was medically assessed and sustained no injuries.

Id. Inmate Bone was to remain in four-point restraints until he demonstrates

a pattern of non-disruptive behavior. Id. Inmate Bone was tested via the

4BOP Program Statement 5566.06, Use of Force, governs the

applications of restraints. (Doc. 48-1 at 209, BOP Program Statement

5566.06, Use of Force). Staff is authorized to apply physical restraints

necessary to gain control of an inmate who appears to be dangerous

because the inmate assaults another individual, becomes violent, or displays

signs of imminent violence. Id. When the situation is warranted, the warden

may approve more restrictive or secure restraints (i.e., when less restrictive

restraints have proved to be ineffective previously). Id.

passive breathalyzer system with negative results. Id. No staff injuries were

reported. Id.

Following this incident and calculated use of force, at approximately

8:00 pm, Incident Report Number 3146631 was served on Bone charging

him with Threatening Another with Bodily Harm and Refusing an Order. (Doc.

48-1 at 14).

While an inmate is in restraints, staff must observe the inmate’s

behavior over a period of time to look for patterns of non-disruptive behavior

as an indication that the inmate has regained self-control and is no longer a

disruptive threat. (Doc. 48-1 at 209, BOP Program Statement 5566.06, Use

of Force). Based on staff’s assessment, the inmate can be removed from the

restraints, continue to remain in restraints, or be placed in progressively more

or less restrictive restraints. Id. Correctional staff must assess the inmate

and log their observations every fifteen (15) minutes. Id. Bone’s fifteen-

minute restraint checks were completed in accordance with BOP policy from

8:19 p.m. on July 16, 2018 until 12:45 p.m. on July 17, 2018. (Doc. 48-1 at

15, Fifteen Minute Restraints Check Form (24-Hours)). During the fifteen-

minute restraint checks, Bone had his eyes closed, was staring at the ceiling

or wall, looking out the window, twisting, pulling or manipulating his

restraints, being belligerent toward staff, refusing to acknowledge staff, and

smiling and winking. Id. He made no complaints to correctional staff that his

restraints were too tight. Id.

In addition to the fifteen-minute restraints, while an inmate is in

restraints, a lieutenant must also assess the inmate and log his observations

every two (2) hours. (Doc. 48-1 at 209, BOP Program Statement 5566.06,

Use of Force). In Bone’s case, records reveal that two-hour checks were

completed in accordance with BOP policy. (Doc. 48-1 at 57, Two-Hour

Lieutenant Restraints Check Form (24-Hours)). Lieutenants checked on

Bone’s restraints at 10:00 p.m. on July 16, 2018, and at 12:00 a.m., 2:00

a.m., 4:00 a.m., 6:00 a.m., 8:00 a.m., 10:00 a.m., 12:00 p.m., and at 12:45

p.m. on July 17, 2018, when the restraints were removed. Id. Defendant

Saylor was the lieutenant for the use of force team which placed Bone in

four-point restraints following his disruptive behavior. (Doc. 48-1 at 12,

Report of Incident and Doc. 48-1 at 27, Video submitted under Seal). After

the restraints were applied, Lieutenant Saylor and medical staff checked the

restraints and determined them to be properly applied. Id. Lieutenant Saylor

performed four (4) other lieutenant checks on Bone while he was in

restraints, at 10:00 p.m. on July 16, 2018, and at 8:00 a.m., 10:00 a.m., 12:00

p.m. and 12:45 p.m. on July 17, 2018. (Doc. 48-1 at 57). Each time

Lieutenant Saylor checked the restraints, he found the restraints were

properly placed. Id. While in restraints, Bone maintained a poor attitude by

either refusing to communicate with staff or telling staff when they offered to

remove his restraints at 12:01 a.m. on July 17, 2018, “I can do this all day”

until he started to show “signs of calm behavior” at 12:00 p.m. on July 17,

2018. Id. Bone was downgraded to ambulatory restraints at 9:00 a.m. on July

17, 2018, and removed from those restraints by Lieutenant Saylor at 12:45

p.m. Id. There are no complaints in the Two-Hour Lieutenant Restraints

Check that the restraints were applied inappropriately or too tightly. Id.

While an inmate is in restraints, Health Services staff is required to

check the inmate’s restraints twice during each eight (8) hour shift. (Doc. 48-

1 at 209, BOP Program Statement 5566.06, Use of Force). While an inmate

is in restraints, Psychology staff is required to check the inmate every twenty-

four (24) hours until the inmate’s restraints have been removed. Id. Medical

personnel were present when the restraints were initially placed on Bone and

Bone was medically assessed. (Doc. 48-1 at 12, Report of Incident and Doc.

48-1 at 27, Video submitted under Seal). The initial health services restraint

check was conducted at 8:19 p.m. during which time it was noted that Bone

had no injuries and he was educated about the dangers of manipulating his

restraints. (Doc. 48-1 at 21, Health Services Restraint Review Form (24-

Hours)). His right wrist restraint was adjusted. Id. Otherwise, the restraints

moved freely with no circulatory compromise and Bone made no complaints.

Id. At 12:01 a.m. on July 17, 2018, the health services restraint check

revealed that Bone had no injuries, he refused to use the toilet, he drank

eight (8) ounces of water, and the overall assessment of Bone’s health was

“fine.” Id. The next health services restraint check was conducted at 6:00

a.m. by Defendant (Physician Assistant). (Doc. 48-1 at 62, Clinical

Encounter). PA Ayers indicated that Bone had no complaints, was offered a

meal, water, and the restroom, his breathing and circulation were not

compromised, and that the PA was able to place her finger between Bone’s

skin and the restraints. Id. Bone did not appear to be in distress. Id. The last

health services restraint check was conducted at 12:00 p.m. on July 17,

2018. (Doc. 48-1 at 22). The 12:00 p.m. restraint check indicates that Bone

had no injuries, had food and drink available, he was able to use the toilet

as needed, he was educated on the manipulation of restraints, and his

overall health was assessed as being within normal limits. Id.

At 7:59 a.m. on July 17, 2018, Defendant (Psychologist) Enigk

conducted a psychology restraint check. (Doc. 48-1 at 23, Psychology

Services Restraint Review Form (24-Hours). Bone denied any current

concern or need for increased support from psychology. Id. There were no

apparent symptoms of depression, anxiety, psychosis, suicidality, or acute

emotional distress. Id. Defendant Enigk recommended that Bone comply

with policy and staff’s lawful request. Id. Bone verbalized his understanding

of Defendant Enigk’s recommendation. Id.

Bone was kept in four-point restraints from 8:19 p.m. on July 16, 2018

until 9:00 a.m. on July 17, 2018, when he was placed in ambulatory

restraints. (Doc. 48-1 at 15, Fifteen Minute Restraints Check Form). He was

removed from ambulatory restraints at 12:45 p.m. on July 17, 2018. Id. Once

ambulatory restraints were removed, the Warden issued an After Action

Review, which determined that “the actions taken with respect to the use of

force and/or restraints were reasonable and appropriate and have been

reviewed with staff involved.” (Doc. 48-1 at 25, After Action Review).

On August 6, 2018, a disciplinary hearing was conducted regarding

Incident Report Number 314663, issued as a result of the July 16, 2018

incident. (Doc. 48-1 at 34). Bone was found guilty of committing the

prohibited acts of Threatening Bodily Harm and Refusing to Obey an Order

as alleged. Id. Bone was sanctioned to twenty-seven (27) days loss of good

conduct time, thirty (30) days in disciplinary segregation and ninety (90) days

loss of telephone privileges for the Code 203, Threatening Bodily Harm,

violation. Id. Bone was sanctioned to ninety (90) days loss of visitation

privileges for the Code 307, Refusing to Obey an Order, violation. Id. The

incident report remains on Bone’s disciplinary record and was never

expunged. Id.

On September 12, 2018, Bone was seen by PA Ayers for upper

extremity pain. (Doc. 48-1 at 266, Clinical Encounter). Specifically, Bone

complained of sharp pains in his left wrist and numbness in his hand. Id. He

states this started after he “was put into restraints for a while.” Id. It was noted

that Bone has not tried anything for the pain and states that certain

movements/positions tend to make it worse. Id. PA Ayers advised him to try

a non-steroidal inflammatory ("NSAID") from the commissary for any

discomfort and provided him range of motion exercises for carpal tunnel

syndrome to see if his symptoms improved. Id.

On October 24, 2018, PA Craig saw Bone again for claims of pain and

numbness in his left wrist and hand. (Doc. 48-1 at 268, Clinical Encounter).

He reported trying over the counter (“OTC”) medication with no

improvement. Id. Staff ordered an electromyography (“EMG”) test to rule out

carpal tunnel syndrome. Id.

On October 31, 2018, Bone submitted an indigent request for OTC

medication. (Doc. 48-1 at 270, OTC Medication Request). His request was

denied as he had funds in his commissary account and was not indigent. Id.

On November 1, 2018, Bone was seen by a specialist from the

Pennsylvania Institute of Neurology regarding his left wrist pain. (Doc. 48-1

at 271, Note from Dr. Hasan Askari dated November 1, 2018). The EMG

showed mild neuropathy suggestive of a local injury to the nerve. Id. The

recommended course of treatment was continued symptomatic care. Id.

On November 16, 2018, medical staff responded to an attempted

suicide by Bone. (Doc. 48-1 at 278, Clinical Encounter dated November 16,

2018). Bone indicated he swallowed 20 pills because his anxiety was

causing him pain. Id. He could not specify any particular pain or location, but

wanted additional medication prescribed to him. Id. Psychology staff was

advised. Id.

On November 27, 2018, Bone requested pain medication he alleged

the nerve doctor told him he would receive. (Doc. 48-1 at 279, Administrative

Note dated November 27, 2018). PA Ayers reiterated the EMG results

showed a localized injury, for which he was to try OTC pain medication but

had not done so. Id. Bone was again encouraged to try OTC medication and

give the injury time to heal. Id.

On December 19, 2018, Bone again inquired about pain medication on

December 19, 2018, and became verbally aggressive and threatening during

the encounter with PA Ayers. (Doc. 48-1 at 282, Administrative Note dated

December 19, 2018). A review of Bone’s records indicated he had not yet

purchased any OTC pain medication from the commissary. Id. Due to Bone’s

behavior, PA Ayers terminated the encounter. Id.

On January 2, 2019, Bone had inmate requests to staff forms stuck in

his door. (Doc. 48-1 at 68, Clinical Encounter Administrative Note dated

January 2, 2019). As PA Ayers attempted to approach Bone’s door to

discuss his issues, Bone began screaming and yelling profanities at PA

Ayers. Id. PA Ayers left the forms and terminated the encounter due to being

unable to safely approach Bone’s cell door. Id.

Bone was seen again on January 8, 2019, for complaints of left wrist

pain. (Doc. 48-1 at 283, Clinical Encounter dated January 8, 2019). He was

noted to have finally purchased aspirin from commissary, but it was unknown

if he had taken any of it. Id. Staff prescribed him a five-day round of

prednisone and advised him to continue treatment with OTC medications. Id.

On January 16, 2019, Bone again complained of left wrist pain and was

prescribed Ibuprofen as well as treated with five days of steroid. (Doc. 48-1

at 285, Clinical Encounter dated January 16, 2019).

During a cell search on January 24, 2019, multiple medications were

confiscated from Bone’s cell. (Doc. 48-1 at 287, Administrative Note dated

January 24, 2019). Included were nine prednisone tablets and eighteen

Ibuprofen tablets, indicating he was not taking the medication as prescribed.

Id.

On February 1, 2019, Dr. Edinger evaluated Bone, where he

complained of nerve pain in his left wrist. (Doc. 48-1 at 288, Clinical

Encounter dated February l, 2019). Dr. Edinger determined Bone’s

description was more akin to a tendon injury known as De Quervain’s

Tenosynovitis and provided him a splint and advised him to wear it

continuously for six weeks. Id.

On February 27, 2019, PA Ayers entered a note in Bone’s chart that

he continued to complain of thumb and wrist pain, for which he was given a

brace by Dr. Edinger. (Doc. 48-1 at 69, Administrative Note dated February

27, 2019). As of February 27, 2019, Bone had yet to be observed wearing

the splint throughout the day. Id. PA Ayers encouraged Bone to be compliant

with the brace and wear it consistently for the next four weeks to see if there

is improvement. Id.

On March 26, 2019, medical staff again saw Bone for complaints of left

wrist pain. (Doc. 48-1 at 291, Clinical Encounter dated March 26, 2019). Staff

indicated he had been in restraints a number of times for engaging in

disruptive behavior, approximately seven times since his arrival to USP-

Lewisburg in July 2018. Id. That frequency does not allow sufficient time for

the nerve injury to heal. Id. He also had sporadic use of OTC anti-

inflammatories. Id. Medical staff advised him to continue OTC medication

and avoid behavior placing him in restraints. Id.

The Bureau of Prisons (BOP) has a multi-tiered administrative remedy

program with the stated purpose of “allow[ing] an inmate to seek formal

review of an issue relating to any aspect of his/her own confinement.” 28

C.F.R. §542.10 et seq. Inmates must first informally present their complaint

to staff in an attempt to resolve the matter. 28 C.F.R. §542.13(a). If informal

resolution is not successful, the inmate then presents the issue to the warden

within twenty (20) calendar days following the events giving rise to the

complaint. 28 C.F.R. §542.14. The Warden has twenty (20) days to respond

to the inmate’s complaint. 28 C.F.R. §542.18. In the event the inmate is

dissatisfied with the warden's response, he may file an appeal to the

Regional Director “within 20 calendar days of the date the Warden signed

the response.” 28 C.F.R. §542.15(a). If the response of the Regional Director

is not satisfactory to the inmate, the inmate may then appeal within thirty (30)

calendar days to the BOP’s Central Office, which is the final administrative

appeal. Id. If an inmate “does not receive a response within the time allotted

for reply, including extension, the inmate may consider the absence of a

response to be a denial at that level.” 28 C.F.R. §542.18. If a remedy is

rejected, it is returned to the inmate and the inmate is provided with a written

notice explaining the reason for a rejection. 28 C.F.R. §542.17(a), (b). An

administrative remedy is deemed exhausted only when it has been denied

by the Central Office.

BOP records show that Bone filed a total of one hundred ninety-four

(194) administrative remedies while he has been in BOP custody. (Doc. 48-

1 at 170, Administrative Remedy Generalized Retrieval). During the time

period of July 9, 2018, when Bone arrived at USP-Lewisburg, to January 17,

2019, when Bone filed his complaint, Bone filed forty-six (46) administrative

remedies. Id. Of those forty-six (46) administrative remedies, Bone only

exhausted six (6) remedies through the Central Office level. Id. The six

remedies and their respective “abstract” descriptions noted in the

Administrative Remedy Generalized Retrieval report is as follows:

• Remedy 952753, “claims staff ignored his suicidal warning”

• Remedy 954580, “staff used profane language with him”

• Remedy 954575, “alleges counselor did not give him 2 BP8

responses”

• Remedy 954728, “alleges med staff aren’t documenting in his

records”

• Remedy 954766, “DHO appeal”

• Remedy 954768, “DHO appeal”

Id.

IV. Discussion

A. Bivens Claim - Excessive Force

No federal statute authorizes federal courts to hear suits against

federal officers who violate the Constitution. However, the Supreme Court

has inferred a narrow cause of action against federal officers for damages

directly from the text of the Constitution. Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (Fourth

Amendment violation related to warrantless search and seizure); Carlson v.

Green, 446 U.S. 14 (1980) (Eighth Amendment violation related to a prison

officials’ denial of medical care); Davis v. Passman, 442 U.S. 228 (1979)

(Fifth Amendment due process clause violation based on discrimination on

the basis of sex in federal employment).

Under Bivens, the District Court has federal question jurisdiction

pursuant to 28 U.S.C. §1331 to entertain an action brought to redress alleged

federal constitutional or statutory violations by a federal actor. Bivens, supra.

Pursuant to Bivens, “a citizen suffering a compensable injury to a

constitutionally protected interest could invoke the general federal question

jurisdiction of the district court to obtain an award of monetary damages

against the responsible federal official.” Butz v. Economou, 438 U.S. 478,

504 (1978). A Bivens-style civil rights claim is the federal equivalent of an

action brought pursuant to 42 U.S.C. §1983 and the same legal principles

have been held to apply. See Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir.

1975); Veteto v. Miller, 829 F.Supp. 1486, 1492 (M.D. Pa. 1992); Young v.

Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D. Pa. 1992). In order to state

an actionable Bivens claim, a plaintiff must allege that a person has deprived

him of a federal right, and that the person who caused the deprivation acted

under color of federal law. See West v. Atkins, 487 U.S. 42, 48 (1988); Young

v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa. 1992).

It is not enough that a plaintiff allege he suffered a violation of the same

general right as one of the three recognized grounds for a Bivens claim. The

Supreme Court has held that it will not expand the Bivens cause of action to

contexts that are “different in a meaningful way from previous Bivens cases”

decided by the Court. Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020)

(quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1859 (2017)). As a result, in order

to have a cognizable Bivens claim, a plaintiff must allege that his claim is

both factually and legally similar to Bivens claims previously decided by the

Supreme Court. Id. at 743. If the claim presents a new context, courts should

then apply a “special factors” analysis to determine whether “special factors

counsel hesitation” in expanding Bivens, absent affirmative action by

Congress. Abbasi, 137 S. Ct. at 1857, 1876 (citation omitted).

In the matter sub judice, Bone seeks damages for Defendants alleged

used excessive force against him in violation of his Eighth Amendment rights.

He asserts that the BOP defendants fabricated an incident report and

restraint checks in order to justify his placement and continuation in

restraints. The Third Circuit has found a comparable claim to constitute an

expansion of Bivens into a new context, and this court agrees. Bistrian v.

Levi, 912 F.3d 79, 94 (3d Cir. 2018) (“[T]he punitive-detention claim does

amount to an extension of Bivens into a new context.”). In Abbasi, the

Supreme Court concluded that “expanding the Bivens remedy is now a

disfavored judicial activity,” noting that it has “consistently refused to extend

Bivens to any new context or new category of defendants.” 137 S. Ct. at 1857

(citations omitted). Consideration of special factors counseling against

extension of Bivens must be undertaken. “[T]he inquiry must concentrate on

whether the Judiciary is well suited, absent congressional action or

instruction, to consider and weigh the costs and benefits of allowing a

damages action to proceed.” Id. at 1857-58. Under Abbasi, “any alternative,

existing process for protecting the [plaintiff's] interest[s]” is a compelling

reason to “refrain” from extending a Bivens remedy. Id. at 1858 (citations

omitted).

The Third Circuit’s discussion of the special factors to be weighed

when considering whether to extend the Bivens remedy to a claim for

punitive detention is compelling:

[A] punitive-detention claim more fully calls in question broad

policies pertaining to the reasoning, manner, and extent of prison

discipline. The warden and other prison officials have—and

indeed must have—the authority to determine detention policies,

to assess the endless variety of circumstances in which those

policies may be implicated, and to decide when administrative

detention is deserved and for how long. See Sandin v. Conner,

515 U.S. 472, 482, 115 S. Ct. 2293, 132 L.Ed.2d 418 (1995)

(observing, in the §1983 context, that “federal courts ought to

afford appropriate deference and flexibility to state officials trying

to manage a volatile [prison] environment” and thus should limit

“the involvement of federal courts in the day-to-day management

of prisons”). Detention policies and their application cannot be

helpfully reviewed as Bivens claims. “[C]ourts are ill equipped to

deal with the increasingly urgent problems of prison

administration and reform” because the problems “are complex

and intractable, and, more to the point, they are not readily

susceptible of resolution by decree.” Turner v. Safley, 482 U.S.

78, 84, 107 S. Ct. 2254, 96 L.Ed.2d 64 (1987) (citation omitted).

The Bureau of Prisons, not the judiciary, has the “expertise,

planning, and the commitment of resources” necessary for the

difficult task of running a correctional facility. Id. at 84-85, 107

S.Ct. 2254. Consequently, the task of prison administration “has

been committed to the responsibility of [the legislative and

executive] branches, and separation-of-powers concerns

counsel a policy of judicial restraint.” Id. at 85, 107 S. Ct. 2254.

Ruling on administrative detention policy matters would unduly

encroach on the executive’s domain. See Wetzel v. Edwards,

635 F.2d 283, 288 (4th Cir. 1980) (“It is a rule grounded in

necessity and common sense, as well as authority, that the

maintenance of discipline in a prison is an executive function with

which the judicial branch ordinarily will not interfere.” (citation

omitted)).

Besides those serious separation of powers concerns,

recognizing a Bivens remedy would likely cause “an increase of

suits by inmates, increased litigation costs to the government,

and ... burdens on individual prison employees to defend such

claims.” ... Heeding the reasoning in Abbasi, we must be

reluctant to “establish whole categories of cases in which federal

officers must defend against personal liability claims in the

complex sphere of litigation.” 137 S. Ct. at 1858 .... [The]

punitive-detention claim ... is not a valid Bivens action.

Bistrian, 912 F.3d at 94–95 (footnotes omitted); see also Earle v. Shreves,

990 F.3d 774, 780–81 (4th Cir. 2021) (addressing a claim that a plaintiff had

been placed in the SHU in retaliation, the Fourth Circuit cited the Third

Circuit’s analysis of the special factors with approval). Thus, no further

discussion is required. The Bistrian decision is on point and persuasive.

Adopting the Third Circuit’s reasoning, this Court joins the many others that

have concluded, that extending Bivens to Bone’s Eighth Amendment

excessive confinement in restraints claim would be contrary to law.

Consequently, we find that Plaintiff’s Eighth Amendment excessive force

claim should be dismissed under Rule 12(b)(6) for failure to state a claim.

B. Defendant Enigk entitled to Statutory Immunity

Bone sets forth claims against Chief Psychologist Enigk, claiming that

she failed to properly treat him for an alleged panic/anxiety disorder. (Doc.

25). Defendant Enigk is a commissioned officer and member of the United

5 See, e.g., Mammana v. Barben, No. 20-2364, 2021 WL 2026847, at

*4 (3d Cir. May 21, 2021) (footnote omitted) (plaintiff alleging Eighth

Amendment violation for confinement for four days “in a chilled room with

constant lighting, no bedding, and only paper-like clothing” did not state a

Bivens claim, with the Third Circuit noting plaintiff “asks for a new implied

cause of action to sue federal prison officials for unconstitutional conditions

of confinement, a step never taken by the Supreme Court nor any circuit

court”); Hill v. Lappin, No. 3:11-cv-1609, 2021 WL 2222725, *3 (M.D. Pa.

June 2, 2021) (noting that although the courts “in the wake of Abbasi” initially

did not sua sponte consider whether conditions-of-confinement claims

remained viable, “[a]s the dust settles, however, and courts began to

appreciate Abbasi’s watershed scope, the better-reasoned authority has

declined to recognize a Bivens remedy for Eighth Amendment conditions-of-

confinement…claims.”); Brown v. Nash, No. 3:18-CV-528, 2019 WL

7562785, at *4-6 (S.D. Miss. Dec. 13, 2019) (concluding that Bivens did not

extend to inmate’s Eighth Amendment claim of excessive force, noting, inter

alia, that concerns of institutional security counseled hesitation), report and

recommendation adopted, 2020 WL 129101 (Jan. 10, 2020); Hunt v.

Matevousian, 336 F. Supp. 3d 1159, 1169-70 (E.D. Cal. Oct. 1, 2018)

(declining to extend Bivens to inmate’s Eighth Amendment claim of

excessive force, noting that “Congress has been active in the area of

prisoners’ rights, and its actions do not support the creation of a new Bivens

claim”).

States Public Health Service and was assigned to USP-Lewisburg as the

Chief Psychologist. (Doc. 48 at ¶ 7). Under the Public Health Service Act,

the exclusive remedy for personal injury damages resulting from the

performance of medical functions by any officer or employee of the Public

Health Service while acting within the scope of their office or employment is

a suit against the United States pursuant to the FTCA. See 42 U.S.C.

§233(a). Section 233(a) thus “grants absolute immunity to [Public Health

Service] officers and employees for actions arising out of the performance of

medical or related functions within the scope of their employment by barring

all actions against them for such conduct.” Hui v. Castaneda, 559 U.S. 799,

806 (2010). Thus, the Public Health Service Act precludes suit against Chief

Psychologist Enigk, and she is entitled to dismissal from this action. See

Anderson v. Bureau of Prisons, 176 F. App’x. 242, 243 (3d Cir. 2006).

C. Favorable Termination Rule

Bone asserts that the incident report issued against him on July 16,

2018 was falsified and resulted in his placement in restraints, in violation of

the Eighth Amendment. In response, Defendants argue that Bone’s Eighth

Amendment claim is barred by the favorable termination rule in Heck v.

Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court ruled that a

constitutional cause of action for damages does not accrue “for allegedly

unconstitutional conviction or imprisonment, or for other harm caused by

actions whose unlawfulness would render a conviction or sentence invalid,”

until the plaintiff proves that the “conviction or sentence has been reversed

on direct appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into question by a

federal court's issuance of a writ of habeas corpus.” Id. at 486-8.

In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court

extended the rationale in Heck to disciplinary proceedings, holding that the

expungement of the inmate disciplinary proceeding would imply the invalidity

of the underlying disciplinary action: “[t]he principal procedural defect

complained of by the respondent would, if established, necessarily imply the

invalidity of the deprivation of his good-time credits.” Edwards, 520 U.S. at

646. Accordingly, an inmate may not bring a civil rights action for declaratory

and injunctive relief related to an inmate disciplinary proceeding without first

challenging and overturning, via appropriate proceedings, the disciplinary

hearing in question. Id. at 646-47.

Here, an award of damages would implicate the validity of the

underlying disciplinary proceedings. Bone cannot assert such a claim unless

he can demonstrate that the DHO’s decision regarding the misconduct was

invalidated on administrative appeal or through issuance of a writ of habeas

corpus. There is no evidence that the DHO’s decision was invalidated

through the BOP’s administrative remedy review system. Further, there is no

indication that a petition for writ of habeas corpus challenging the validity of

the misconduct proceedings was ever pursued or resolved favorably to

Bone. Thus, because the disciplinary proceedings have not been determined

unlawful, it is appropriate to dismiss this claim pursuant to Heck and

Edwards.

D. Bivens-Eighth Amendment Deliberate Indifference to Medical

Care

As is relevant in the present case, the United States Supreme Court

has specifically allowed Bivens claims to be brought against federal prison

officials based on an allegation of deliberate indifference to a serious medical

need. See Carlson v. Green, 446 U.S. 14 (1980) (holding that prisoner's

estate had a Bivens remedy against federal jailers for failure to treat his

asthma under the Eighth Amendment). Here, Bone alleges that excessively

tight restraints caused his wrist pain and Defendants were indifferent to the

treatment of his pain.

In order to establish an Eighth Amendment medical claim, a plaintiff

must show “(i) a serious medical need, and (ii) acts or omissions by prison

officials that indicate deliberate indifference to that need.” Natale v. Camden

Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one

that has been diagnosed by a physician as requiring treatment, or one that

is so obvious that a layperson would recognize the need for a doctor's

attention. Monmouth County Correctional Institutional Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987). In addition, “if unnecessary and wanton

infliction of pain results as a consequence of denial or delay in the provision

of adequate medical care, the medical need is of the serious nature

contemplated by the eighth amendment.” Id.

A prison official acts with deliberate indifference to an inmate’s serious

medical needs when he “knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994). Thus, a complaint that a physician or a medical department “has

been negligent in diagnosing or treating a medical condition does not state

a valid claim of medical mistreatment under the Eighth Amendment ...”

Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a “medical decision

not to order an X-ray, or like measures, does not represent cruel and unusual

punishment. At most it is medical malpractice.” Id., 429 U.S. at 107. “[A]s

long as a physician exercises professional judgment his behavior will not

violate a prisoner's constitutional rights.” Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor’s

disagreement with the professional judgment of another doctor is not

actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d

103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment,

or medical malpractice does not give rise to a §1983 cause of action, and an

inmate's disagreement with medical treatment is insufficient to establish

deliberate indifference. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.

1993).

Further, a prison administrator cannot be found deliberately indifferent

under the Eighth Amendment because he or she fails to respond to the

medical complaints of an inmate being treated by a prison physician, or

because, as non-physicians, they defer to the medical judgment of the

inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical

prison personnel had “a reason to believe (or actual knowledge) that prison

doctors or their assistants are mistreating (or not treating) a prisoner,” liability

may be imposed. Spruill, 372 F.3d 236.

A mere difference of opinion between the prison’s medical staff and

the inmate regarding the diagnosis or treatment which the inmate receives

does not support a claim of cruel and unusual punishment. Farmer v.

Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v.

Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113

(10th Cir. 1976).

Additionally, if there is a dispute over the adequacy of the received

treatment, courts have consistently been reluctant to second guess the

medical judgment of the attending physician. Little v. Lycoming County, 912

F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996). The key

question is whether the defendant has provided the plaintiff with some type

of treatment, regardless of whether it is what the plaintiff desires. Farmer v.

Carlson, 685 F. Supp. at 1339.

Assuming, without deciding, that Plaintiff’s medical need was serious

in the constitutional sense, the record evidence more than amply

demonstrates that Plaintiff received medical attention, and that the attention

Plaintiff received lacks the requisite deliberate indifference to support a

Section 1983 claim.

Initially, the Court notes that Plaintiff’s medical record reviewed on July

13, 2018, within two weeks of his transfer to USP-Lewisburg, revealed that

Plaintiff had previously complained of pain and numbness as a result of

several self-inflicted injuries to his left wrist and forearm.

Bone first complained of left wrist pain at USP-Lewisburg on

September 12, 2018, during an encounter with PA Ayers. She advised him

to try a non-steroidal inflammatory from the commissary for any discomfort

and provided him range of motion exercises for carpal tunnel syndrome to

see if his symptoms improved. When he again complained of wrist pain on

October 24, 2018, staff ordered an EMG to determine the cause. The EMG

showed mild neuropathy suggestive of a local injury to the nerve with the

recommended course of treatment as continued symptomatic care.

As Bone continued to request pain medication, he was continually

directed to purchase OTC pain relievers. He continued to disregard this

recommendation and became aggressive when addressing medical staff.

Once he did finally purchase OTC medication, staff prescribed a round of

prednisone and Ibuprofen; however, it became clear he was not taking the

medication when a cell search on January 24, 2019 resulted in nine

prednisone and eighteen Ibuprofen tablets being confiscated from Bone’s

cell.

Dr. Edinger provided a splint to Bone on February 1, 2019 and advised

him to wear it continuously for six weeks. However, staff noted as of the end

of that month that Bone had yet to be observed wearing the splint throughout

the day. At the latest encounter concerning his wrist pain, staff noted Bone

had been in restraints a number of times for engaging in disruptive behavior,

failing to give sufficient time for the nerve injury to heal. Staff advised him to

continue OTC medication and avoid behavior placing him in restraints.

Plaintiff, himself, admits that he has been provided medical treatment. To the

extent that he attempts to argue that medical never addressed his panic

attacks or anxiety, the record is devoid of any medical encounter in which

Plaintiff addressed these issues with Dr. Edinger or PA Ayers and was

refused treatment.

At best, Plaintiff’s complaint demonstrates his disagreement with the

type of treatment rendered, specifically, his disagreement with the medical

professionals at USP-Lewisburg with respect to his need for medications, as

the record clearly reveals that his medical encounters have clearly been

efforts to seek medication without a medically necessary foundation. Though

he may have disagreed with the medical department’s assessment that

psychotropic medication was not medically necessary, his disagreement with

the course of action that was taken is not enough to state a §1983 claim.

Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989) (citing Estelle, 429

U.S. at 105-06 (in the medical context, an inadvertent failure to provide

adequate medical care cannot be said to constitute an unnecessary and

wanton infliction of pain or to be repugnant to the conscience of mankind)).

This is particularly so in light of the fact that there are no allegations in the

complaint that any of the Defendants intentionally withheld medical treatment

from Plaintiff in order to inflict pain or harm upon Plaintiff. Farmer, 511 U.S.

at 837; Rouse, 12 F.3d at 197. To that extent, the record demonstrates that

Plaintiff has been psychologically assessed on numerous occasions by

several different treating psychologists, shows that Defendants continue to

be attentive to Plaintiff’s situation.

Thus, the Plaintiff’s complaint amounts to nothing more than Plaintiff’s

subjective disagreement with the treatment decisions and medical judgment

of the USP-Lewisburg Medical Department. Where, as here, an inmate is

provided with medical care and the dispute is over the adequacy of that care,

an Eighth Amendment claim does not exist. Nottingham v. Peoria, 709 F.

Supp. 542, 547 (M.D. Pa. 1988). Defendants’ motion for summary judgment

will be granted.

E. Personal Involvement of Ebbert and Colbert

A plaintiff, in order to state an actionable civil rights claim, must plead

two essential elements: (1) that the conduct complained of was committed

by a person acting under color of law, and (2) that said conduct deprived the

plaintiff of a right, privilege, or immunity secured by the Constitution or laws

of the United States. See Groman v. Township of Manalapan, 47 F.3d 628,

638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42

(3d Cir. 1990).

Furthermore, federal civil rights claims brought under §1983 cannot be

premised on a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d

1195, 1207 (3d Cir. 1988). Rather, each named defendant must be shown,

via the complaint’s allegations, to have been personally involved in the

events or occurrences which underlie a claim. See Rizzo v. Goode, 423 U.S.

362 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir.

1976). As explained in Rode:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs.... [P]ersonal involvement can

be shown through allegations of personal direction or of actual

knowledge and acquiescence. Allegations of participation or

actual knowledge and acquiescence, however, must be made

with appropriate particularity.

Rode, 845 F.2d at 1207.

Inmates also do not have a constitutional right to a prison grievance

system. See Jones v. North Carolina Prisoners Labor Union, 433 U.S. 119,

137-138 (1977); Speight v. Sims, No. 08-2038, 2008 WL 2600723 at *1 (3d.

Cir. Jun 30, 2008)(citing Massey v. Helman, 259 F.3d 641, 647 (7th Cir.

2001)(“[T]he existence of a prison grievance procedure confers no liberty

interest on a prisoner.”)). Consequently, any attempt by Plaintiff to establish

liability against a defendant solely based upon the substance or lack of

response to his institutional grievances does not by itself support a

constitutional due process claim. See also Alexander v. Gennarini, 144 Fed.

Appx. 924, 925 (3d Cir. 2005)(involvement in post-incident grievance

process not a basis for §1983 liability); Prvor-El v. Kelly, 892 F. Supp. 261,

275 (D. D.C. 1995) (because prison grievance procedure does not confer

any substantive constitutional rights upon prison inmates, the prison officials’

failure to comply with grievance procedure is not actionable).

With respect to Defendants Warden Ebbert and Deputy Warden

Colbert, Plaintiff contends that he submitted grievances to these Defendants

regarding “being denied medical and psychological treatment and

medication.” (Doc. 25).

Based on those vague assertions and the record which reveals the

only involvement of these Defendants were through their involvement with

Plaintiff’s grievances, it is apparent that Plaintiff is attempting to establish

liability against these Defendants based upon either their respective

supervisory capacities or their review of his institutional grievances. Pursuant

to the above discussion, either approach is insufficient for establishing civil

rights liability against those Defendants and they are entitled to judgment as

a matter of law.

V. Preliminary Injunction

An injunction is an “extraordinary remedy” that is never awarded as of

right. Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008).

The United States Court of Appeals for the Third Circuit has delineated

four (4) factors that a district court must consider when ruling on a motion for

a preliminary injunction: (1) whether the movant has shown a reasonable

probability of success on the merits; (2) whether the movant will be

irreparably injured if the court denies the requested relief; (3) whether

granting the requested relief will result in even greater harm to the

nonmoving party; and (4) whether granting the relief will be in the public

interest. See Gerardi v. Pellulo, 16 F.3d 1363, 1373 (3d Cir. 1994); Hoxworth

v. Blinder, Robinson & Co., 903 F.2d 186, 1970–98 (3d Cir. 1990). These

same factors are used in considering a motion for temporary restraining

order. Bieros v. Nicola, 857 F.Supp. 445, 446 (E.D. Pa. 1994). The moving

party has the burden of satisfying these factors. Adams v. Freedom Forge

Corp., 204 F.3d 475, 486 (3d Cir. 2000). While each factor need not be

established beyond a reasonable doubt, they must combine to show the

immediate necessity of injunctive relief. Stilp v. Contino, 629 F.Supp.2d 449,

457 (M.D. Pa. 2009) (citing Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d

Cir. 2002) ). In addition, “[a]s these elements suggest, there must be a

‘relationship between the injury claimed in the party’s motion and the conduct

asserted in the complaint’.” Ball v. Famiglio, 396 Fed. App’x 836, 837 (3d Cir.

2010) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) ).

Moreover, the power of a court to issue injunctive relief is also limited

and circumscribed by the mootness doctrine. The mootness doctrine

recognizes a fundamental truth in litigation: “[i]f developments occur during

the course of adjudication that eliminate a plaintiff's personal stake in the

outcome of a suit or prevent a court from being able to grant the requested

relief, the case must be dismissed as moot.” Blanciak v. Allegheny Ludlum

Corp., 77 F.3d 690, 698–99 (3d Cir. 1996).

In the instant case, Bone seeks injunctive relief in the form of Court

ordered “treatment and medication.” (Doc. 25). However, Bone is no longer

housed at USP-Lewisburg. Subsequent to the filing of the above captioned

action, Plaintiff was transferred to USP-Coleman.

The Third Circuit Court of Appeals has observed that, when addressing

inmate requests for injunctive relief:

As a preliminary matter, we must determine whether the inmates’

claims are moot because “a federal court has neither the power

to render advisory opinions nor to decide questions that cannot

affect the rights of litigants in the case before them.” Preiser v.

Newkirk, 422 U.S. 395, 401 (1975) (quotations omitted); see

also, Abdul–Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993). An

inmate’s transfer from the facility complained of generally moots

the equitable and declaratory claims. Abdul–Akbar, 4 F.3d at 197

(former inmate’s claim that the prison library’s legal resources

were constitutionally inadequate was moot because plaintiff was

released five months before trial.)

Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003). This Court has

previously held, in a case such as the present, where an inmate seeks

injunctive relief against his jailers but is no longer housed at the prison where

those injunctive claims arose, his transfer to another institution moots any

claims for injunctive or declaratory relief. Fortes v. Harding, 19 F.Supp.2d

323, 326 (M.D. Pa. 1998). For these reasons, Plaintiff’s claim for preliminary

injunctive relief must be denied as moot since he is no longer confined at

USP-Lewisburg, and there is no indication that he will be housed at that

facility in the foreseeable future.

VI. Conclusion

Based upon the undisputed facts of record, Defendants’ motion to

dismiss and for summary judgment will be granted.

An appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Dated: March 29, 2022

19-0112-01