# Bone v. Ebbert

> District Court, M.D. Pennsylvania · March 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10411542

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 29, 2022
- **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/10411542

## How later opinions describe it (automated extraction)

- 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”
- holding that prisoner's estate had a Bivens remedy against federal jailers for failure to treat his asthma under the Eighth Amendment

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411542. Public record. Not legal advice.