Cascella v. United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JON CASCELLA, No. 4:21-CV-01490

Plaintiff, (Chief Judge Brann)

v.

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION

FEBRUARY 9, 2024

Plaintiff Jon Cascella filed the instant lawsuit under the Federal Tort Claims

Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. He alleges negligence by several

Federal Bureau of Prisons (BOP) officials during his incarceration at LSCI

Allenwood in White Deer, Pennsylvania. Presently pending is Defendant’s motion

for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the

reasons that follow, the Court will dismiss Cascella’s first two FTCA claims for

lack of subject matter jurisdiction and will grant Defendant’s motion for summary

judgment as to Cascella’s third and final FTCA claim.

I. FACTUAL BACKGROUND1

Cascella suffers from serious mental health issues, including a history of

suicidal “gestures/attempts.”2 In his complaint, he alleged that on February 4,

2020, while he was on suicide watch, Christine Schmidt, PhD, negligently gave

him a “sharp pencil” that he used to cut his left arm.3 He additionally asserted that

Dr. Schmidt negligently removed him from suicide watch on February 18, 2020,

and placed him in the special housing unit (SHU) in a “high risk situation,” which

allowed him to acquire a razor blade.4 Then, on March 12, 2020, he used that razor

blade to cut himself five times.5 After being treated by medical staff, Cascella

alleges that Lieutenant Justin Foura negligently shackled his legs too tightly,

1 Local Rule of Court 56.1 requires that a motion for summary judgment be supported “by a

separate, short, and concise statement of the material facts, in numbered paragraphs, as to

which the moving party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT

56.1. A party opposing a motion for summary judgment must file a separate statement of

material facts, responding to the numbered paragraphs set forth in the moving party’s statement

and identifying genuine issues to be tried. Id. “Statements of material facts in support of, or

in opposition to, a motion [for summary judgment] shall include references to the parts of the

record that support the statements.” Id. The United States filed a lengthy and properly

supported statement of material facts. See Doc. 152. Cascella responded to this statement as

part of his brief in opposition to Defendant’s Rule 56 motion. See Doc. 162 at 19-30. Many

of Cascella’s denials, however, are not supported by citations to the record and instead contain

nothing more than argument or opinion. This directly contravenes Local Rule 56.1. See

Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613 (3d Cir. 2018) (explaining that Local Rule

56.1 “is essential to the Court’s resolution of a summary judgment motion due to its role in

organizing the evidence, identifying undisputed facts, and demonstrating precisely how each

side proposed to prove a disputed fact with admissible evidence.” (emphasis supplied) (internal

quotation marks and citations omitted)). Defendant’s statements of material facts, therefore,

are deemed admitted unless properly countered by Cascella with citations to admissible record

evidence. See LOCAL RULE OF COURT 56.1.

2 See Doc. 152 ¶¶ 1-2.

3 Doc. 1 ¶ 5(a).

4 Id. ¶ 5(c).

5 Id. ¶ 5(d).

causing “4 deep lacerations” by the leg restraints in both of his legs.6

Cascella pursued these FTCA claims through the administrative system.7

On July 31, 2021, the BOP denied his administrative claims and issued him a right-

to-sue letter.8 Cascella timely filed suit in this Court the following month, alleging

negligence by BOP officials.9 Defendant, the United States, now moves for

summary judgment on all remaining FTCA claims.10 That motion is fully briefed

and ripe for disposition.

II. STANDARD OF REVIEW

“One of the principal purposes of the summary judgment rule is to isolate

and dispose of factually unsupported claims or defenses.”11 Summary judgment is

appropriate where “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.”12 Material

facts are those “that could alter the outcome” of the litigation, and “disputes are

6 Id. Cascella also alleged that on February 18, 2020, a nurse gave him a syringe while he was

in the “suicide cell,” in violation of BOP policy and procedure. Id. ¶ 5(b). However, during

his deposition, he admitted that the syringe was given to him for insulin administration and

that he did not suffer any bodily injury from this incident. See Doc. 152 ¶¶ 18-20. Accordingly,

Cascella concedes that any FTCA claim related to this incident should be withdrawn. See id.

¶ 21; Doc. 162 at 21 ¶ 21.

7 See Doc. 89-1 at 3-12; Doc. 90.

8 Doc. 1-2 at 2.

9 See generally Doc. 1.

10 Doc. 140.

11 Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

12 FED. R. CIV. P. 56(a).

‘genuine’ if evidence exists from which a rational person could conclude that the

position of the person with the burden of proof on the disputed issue is correct.”13

At the Rule 56 stage, the Court’s function is not to “weigh the evidence and

determine the truth of the matter” but rather “to determine whether there is a

genuine issue for trial.”14 The Court must view the facts and evidence presented

“in the light most favorable to the non-moving party” and must “draw all

reasonable inferences in that party’s favor.”15 This evidence, however, must be

adequate—as a matter of law—to sustain a judgment in favor of the nonmoving

party on the claim or claims at issue.16 A “scintilla of evidence” supporting the

nonmovant’s position is insufficient; “there must be evidence on which the jury

could reasonably find for the [nonmovant].”17 Succinctly stated, summary

judgment is “put up or shut up time” for the nonmoving party.18

III. DISCUSSION

Defendants challenge each of Cascella’s FTCA claims. They first contend

that the discretionary function exception bars Cascella’s negligence claims. They

13 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern

Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).

14 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

15 Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014).

16 Liberty Lobby, 477 U.S. at 250-57; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587-89 (1986).

17 Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192 (3d Cir. 2015) (quoting Liberty Lobby, 477

U.S. at 252) (alteration in original).

18 Daubert v. NRA Grp., LLC, 861 F.3d 382, 391 (3d Cir. 2017) (quoting Berkeley Inv. Grp.

v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)).

further maintain that, even if the discretionary function exception does not

preclude Cascella’s claims, he has failed to proffer sufficient evidence to establish

prima facie claims of negligence with respect to his removal from suicide watch

and the tightening of his leg restraints. After thorough consideration, the Court

finds that none of Cascella’s claims can survive Rule 56 scrutiny.

A. FTCA and the Discretionary Function Exception

“The FTCA offers a limited waiver of the federal government’s sovereign

immunity from civil liability for negligent acts of government employees acting

within the scope of their employment.”19 “[T]he FTCA does not itself create a

substantive cause of action against the United States; rather, it provides a

mechanism for bringing a state law tort action against the federal government in

federal court. Thus, ‘the extent of the United States’ liability under the FTCA is

generally determined by reference to state law.’”20

There is, however, a significant limitation on FTCA liability, often referred

to as the “discretionary function exception.”21 The discretionary function

exception to the FTCA eliminates jurisdiction “for claims based upon the exercise

of a discretionary function on the part of any employee of the government.”22 The

19 Rinaldi v. United States, 904 F.3d 257, 273 (3d Cir. 2018); see also 28 U.S.C. § 1346(b)(1).

20 In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 361-62 (3d Cir. 2001) (quoting

Reo v. U.S. Postal Serv., 98 F.3d 73, 75 (3d Cir. 1996)).

21 S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 332 (3d Cir. 2012); 28 U.S.C. §

2680(a).

22 Baer v. United States, 722 F.3d 168, 172 (3d Cir. 2013) (citing 28 U.S.C. § 2680(a)).

exception “marks the boundary between Congress’[s] willingness to impose tort

liability upon the United States and its desire to protect certain governmental

activities from exposure to suit by private individuals.”23 The exception applies to

discretionary actions “whether or not the discretion involved be abused.”24 The

government bears the burden of establishing that the discretionary function

exception applies.25

When faced with a discretionary function challenge by the government, the

Court must first identify the conduct at issue in the FTCA claim.26 Once the

conduct is identified, the court performs a two-step inquiry to determine if the

discretionary function exception immunizes the government from an FTCA claim

arising out of that conduct.27

First, the court considers whether the conduct at issue “is a matter of choice

for the acting employee” because “conduct cannot be discretionary unless it

involves an element of judgment or choice.”28 If a federal statute, regulation, or

policy dictates a course of action for a federal employee to follow, the

23 S.R.P. ex rel. Abunabba, 676 F.3d at 332 (quoting United States v. S.A. Empresa de Viacao

Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)).

24 28 U.S.C. § 2680(a); Merando v. United States, 517 F.3d 160, 167 (3d Cir. 2008).

25 S.R.P. ex rel. Abunabba, 676 F.3d at 333 (citation omitted).

26 See id. at 332.

27 Id. at 332-33.

28 Baer, 722 F.3d at 172.

discretionary function exception cannot apply because “the employee has no

rightful option but to adhere to the directive.”29

If, on the other hand, a specific course of conduct is not prescribed for the

employee, the court proceeds to the second step.30 At step two, because the

challenged conduct involves an element of judgment or choice, the court must

determine “whether that judgment is of the kind that the discretionary function

exception was designed to shield.”31 That is because the exception “protects only

governmental actions and decisions based on considerations of public policy.”32

The focus of this inquiry is not on the employee’s subjective intent in exercising

discretion but “on the nature of the actions taken and . . . whether they are

susceptible to policy analysis.”33 As the Supreme Court has explained, “[t]here are

obviously discretionary acts performed by a Government agent that are within the

scope of his employment but not within the discretionary function exception

because these acts cannot be said to be based on the purposes that the regulatory

regime seeks to accomplish.”34 However, “if a regulation allows the employee

discretion, the very existence of the regulation creates a strong presumption that a

discretionary act authorized by the regulation involves consideration of the same

29 S.R.P. ex rel. Abunabba, 676 F.3d at 333 (quoting Berkovitz v. United States, 486 U.S. 531,

536 (1988)).

30 Id.

31 United States v. Gaubert, 499 U.S. 315, 322-23 (1991).

32 Id. at 323 (quoting Berkovitz, 486 U.S. at 537).

33 Id. at 325.

34 Id. at 325 n.7.

policies which led to the promulgation of the regulations.”35

B. February 4, 2020 Incident

Cascella first alleges that Dr. Schmidt was negligent by providing him with a

pencil, purportedly in contravention of BOP policy, while he was on suicide watch.

The undisputed facts reflect that on February 4, 2020, Dr. Schmidt gave Cascella a

small “golf” pencil and his reading glasses so that he could complete the

Minnesota Multiphasic Personality Inventory-2, which would allow Dr. Schmidt to

better assess Cascella’s current psychological state.36 Pursuant to BOP Program

Statement P5324.08 § 12(c)(2), Dr. Schmidt advised Cascella’s inmate

companion—who was present to monitor Cascella’s behavior while on suicide

watch—to contact staff if Cascella used the pencil to threaten or engage in self-

harm.37

About 20 minutes later, Dr. Schmidt was notified that Cascella had

threatened to commit self-harm with the small pencil, prompting the inmate

companion to notify staff.38 Cascella’s medical records do not establish that he did

anything more than threaten to use the pencil for self-harm by holding it to his

wrist.39 Cascella alleges in his complaint that he “cut” his left arm with the

35 Baer, 722 F.3d at 172-73 (quoting Gaubert, 499 U.S. at 324).

36 Doc. 152 ¶¶ 5-6, 8.

37 Id. ¶ 9.

38 Id. ¶ 10; Doc. 152-3 at 2.

39 See Doc. 152-3 at 2.

pencil,40 but he has not provided any evidence to substantiate this allegation. At

best, Cascella points to suicide observation logs (written by nonmedical “inmate

companions”) that indicate that he used the pencil to “poke” and “scratch” his

arm.41 It does not appear that medical attention was sought for any physical injury.

The United States argues that BOP policy provides discretion for designated

psychologists like Dr. Schmidt to determine what type of personal property to

provide to inmates on suicide watch, and therefore the discretionary function

exception bars this claim. The Court agrees.

Step one of the discretionary function analysis asks whether the conduct at

issue is a matter of choice for the federal employee. Here, whether to give

Cascella a small golf pencil and reading glasses to fill out a psychological

questionnaire as part of his mental health treatment clearly involved an “element of

judgment or choice.”42 Cascella has not pointed to any statute, regulation, or

policy that would mandate what specific objects can or cannot be given to inmates

on suicide watch, much less objects that are used as part of psychological

treatment.43 That decision, therefore, was left to Dr. Schmidt’s sound discretion.

40 Doc. 1 ¶ 5(a).

41 See Doc. 162 at 4 (citing Doc. 1-3 at 3-5)).

42 Baer, 722 F.3d at 172 (citation omitted).

43 During his deposition, Cascella argued that page 12 of BOP Program Statement P5324.08

(which appears to be Section 12(b)), did not include in its list of “personal property, bedding,

clothing, magazines” a pencil or glasses or “trauma objects,” and thus the policy prohibited

Dr. Schmidt from giving him a pencil. See Doc. 152-16 at 2-3; see also Doc. 152-18 at 2-3.

Cascella is incorrect. Section 12(b) does not provide an exhaustive list of what objects can or

cannot be given to an inmate on suicide watch. Rather, it states that the Program Coordinator

The second step of the discretionary function analysis asks whether the

governmental action or decision is based on considerations of public policy.

Again, the answer here is a resounding “yes.” Permitting prison doctors—who

have frequent contact with their prisoner-patients and are in the best position to

make treatment decisions—to have discretion regarding how their patients are

treated, tested, housed, and managed is based on policy considerations like prison

healthcare management as well as the safekeeping of inmates who are particularly

vulnerable to the risk of suicide.

Moreover, “if a regulation allows the employee discretion, the very

existence of the regulation creates a strong presumption that a discretionary act

authorized by the regulation involves consideration of the same policies which led

to the promulgation of the regulations.”44 Here, BOP Program Statement P5324.08

§ 12(b) explicitly provides that the Program Coordinator or designee “will specify

the type of personal property, bedding, clothing, magazines, that may be allowed”

for an inmate on suicide watch.45 Thus, there is a “strong presumption” that the

discretionary act of permitting Cascella to have a small golf pencil to fill out a

psychological questionnaire “involves consideration of the same policies which led

or designee (i.e., Dr. Schmidt) will decide what items covered by that list are allowed to be

given to an inmate on suicide watch. Furthermore, a small golf pencil logically can be

considered a type of “personal property.”

44 Baer, 722 F.3d at 172-73 (quoting Gaubert, 499 U.S. at 324).

45 See Doc. 152 ¶ 15; Doc. 152-15 at 13 (emphasis supplied).

to the promulgation of the regulations.”46

In sum, the discretionary function exception applies to Cascella’s first FTCA

claim regarding the events of February 4, 2020. The Court thus lacks subject

matter jurisdiction to entertain this claim and it must be dismissed.47 48

C. February 18, 2020 Removal from Suicide Watch

Cascella next alleges that Dr. Schmidt was negligent by removing him from

suicide watch in a suicide cell and returning him to the SHU on February 18, 2020,

because this decision purportedly enabled him to acquire a razor blade and cut

himself on March 12, 2020. This claim fails for at least two reasons.

First, the Court lacks subject matter jurisdiction for this claim because the

discretionary function exception applies. The analysis here is similar to the

discretionary function analysis for Cascella’s first FTCA claim. Cascella has not

identified a statute, regulation, or policy that dictates when a treating physician like

Dr. Schmidt can remove a prisoner-patient from suicide watch. In fact, Cascella

does not address Defendant’s discretionary function argument for this claim at

46 Baer, 722 F.3d at 172-73 (quoting Gaubert, 499 U.S. at 324).

47 See Merando v. United States, 517 F.3d 160, 175 (3d Cir. 2008).

48 Assuming the Court had jurisdiction to consider this FTCA claim, it would fail for a separate

reason. Even when viewing the facts in a light most favorable to Cascella, the only physical

injury he sustained on February 4 was a scratch or scratches to his wrist. This type of minor

physical injury does not rise above the de minimis level as required for a prisoner FTCA claim

seeking damages for emotional or mental injury. See 28 U.S.C. § 1346(b)(2); 42 U.S.C. §

1997e(e); Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003); West v. United States, 729 F.

App’x 145, 148 (3d Cir. 2018) (nonprecedential) (citing Mitchell, 318 F.3d at 536).

all.49 Dr. Schmidt’s decision regarding when to remove Cascella from suicide

watch, accordingly, was well within her discretion as a treating physician.

And, like Cascella’s first claim, this is the type of decision that is meant to

be shielded from liability by the discretionary function exception. As noted above,

allowing medical professionals—who have frequent contact with their prisoner-

patients and are in the best position to make critical treatment decisions—to have

discretion regarding how their patients are managed and where they are housed is

based on policy considerations of prison healthcare management as well as the

safekeeping of inmates who are particularly vulnerable to suicide.

Additionally, BOP Program Statement P5324.08 provides wide latitude for

psychologists treating inmates who participate in self-injurious behavior or express

suicidal intent. Section 11 of Program Statement P5324.08 states that the Program

Coordinator or designee (i.e., Dr. Schmidt) will determine the appropriate type of

intervention for inmates who present a potential for suicide, like “heightened staff

or inmate interaction, a room/cell change, greater observation, placement in

restraints, or referral for psychotropic medication.”50 Placement on suicide watch

in a suicide observation cell, therefore, is one of many potential treatment options

for inmates who present a heightened risk for suicide.

49 See generally Doc. 162.

50 Doc. 152-15 at 11-12.

And when the psychologist determines, based on “clinical findings,” that a

suicide crisis is over, they will either remove the prisoner from suicide watch or—

if warranted in their professional judgment—“arrange for the inmate’s transfer to a

medical referral center or contract health care facility.”51 These policies expressly

incorporate discretion for the treating physician, and thus “the very existence of the

regulation creates a strong presumption that a discretionary act authorized by the

regulation involves consideration of the same policies which led to the

promulgation of the regulations.”52 Furthermore, when a prisoner (like Cascella) is

placed on suicide watch while housed in the SHU, BOP policy mandates that

“once the crisis is over, the inmate will be returned to the SHU to satisfy any

sanction that was imposed.”53

Consequently, the discretionary function exception applies to Dr. Schmidt’s

February 18 decision, based on her clinical findings, to remove Cascella from

suicide watch and return him to the SHU. The Court, therefore, lacks subject

matter jurisdiction to entertain this FTCA claim.

Even assuming for the sake of argument that the Court had jurisdiction to

adjudicate this claim, it fails on the merits. The United States has proffered

extensive evidence regarding the appropriateness of Dr. Schmidt’s clinical decision

51 Id. at 14.

52 Baer, 722 F.3d at 172-73 (quoting Gaubert, 499 U.S. at 324).

53 Doc. 152-15 at 8 (BOP Program Statement P5324.08 § 9(c)(3)(E)).

to remove Cascella from suicide watch and place him on an individualized four-

week Suicide Risk Management Plan (SRMP), which is utilized when “an inmate’s

self-harm behaviors place him at risk of serious harm or death and the inmate

consistently refuses to engage in collaborative treatments.”54 An SRMP “is an

attempt to shape the environment around the inmate in ways that discourage self-

harm and encourage healthy replacement behaviors.”55 Dr. Schmidt determined

that a transfer from suicide watch to an SRMP was necessary “because crisis-

driven contacts associated with suicide watch were inadvertently making the

intervention therapeutically counter-productive and were reinforcing Cascella’s

maladaptive patterns of thought and behavior of using threats of self-harm to

manipulate his conditions of confinement.”56

Cascella has failed to rebut this medical evidence with any evidence of his

own. Instead, he simply contends that “Dr. Schmidt’s [d]iagnosis was wrong”

because he eventually committed self-harm almost a month later.57 This type of

conclusory allegation and layperson opinion is insufficient to meet Cascella’s

burden at summary judgment.58 As this Court has already indicated, Cascella’s

54 Doc. 152 ¶ 27.

55 Id. ¶ 28.

56 Id. ¶ 29.

57 Doc. 162 at 22 ¶ 29.

58 See Jutrowski v. Township of Riverdale, 904 F.3d 280, 288-89 (3d Cir. 2018) (explaining that

“the non-moving party . . . may not rest upon the mere allegations or denials of his pleadings

but, instead, must set forth specific facts showing that there is a genuine issue for trial. Bare

assertions, conclusory allegations, or suspicions will not suffice.” (alteration omitted) (quoting

D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 268-69 (3d Cir. 2014))).

claim regarding Dr. Schmidt’s decision to remove him from suicide watch and

place him on an SRMP is one that “implicates medical judgment,” a critical

dividing line between run-of-the-mill negligence claims and medical malpractice.59

Merely asserting that Dr. Schmidt’s treatment decision was “wrong” or had a poor

outcome falls far short of creating a genuine dispute of fact regarding whether Dr.

Schmidt breached her duty of care by deviating from an acceptable professional

standard. It likewise fails to establish causation.60

In no way does this claim meet the “very narrow exception” to the

requirement of expert testimony known as “res ipsa loquitur,” whereby a plaintiff

can pursue a medical malpractice claim without expert evidence because “common

knowledge makes apparent” the claim’s merit.61 Rather, determining whether Dr.

Schmidt’s clinical decision to remove Cascella from suicide watch and place him

on an SRMP (1) fell below the “requisite degree of care and skill” ordinarily

possessed “by members of the medical profession,” and (2) proximately caused

Cascella’s subsequent harm requires expert evidence that Cascella has failed to

proffer.62

59 See Doc. 84 at 8; Iwanejko v. Cohen & Grigsby, P.C., 249 F. App’x 938, 944 (3d Cir. 2007)

(nonprecedential) (explaining that a “critical feature” of a medical malpractice action is that it

“turns on ‘questions involving medical judgment’” (quoting Ditch v. Waynesboro Hosp., 917

A.2d 317, 322 (Pa. Super. Ct. 2007))).

60 See Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003) (setting forth

elements for medical malpractice claim under Pennsylvania law).

61 Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 580 (3d Cir. 2003); Toogood, 824 A.2d

at 1145-50 (explaining doctrine of res ipsa loquitur as applied to medical malpractice claims).

62 See Toogood, 824 A.2d at 1145, 1150.

It matters not that Cascella maintains that he is asserting only a simple

negligence claim against Dr. Schmidt.63 His attempt “to recast his cause of action

as something other than a medical malpractice claim to avoid the requirement of

expert medical testimony” in unavailing.64 Without any expert evidence of the

standard of care, breach, or causation, this medical malpractice claim cannot

survive Rule 56 scrutiny.

One final observation is necessary. The determination that Cascella has

failed to present expert evidence of medical negligence is not based on Cascella

being bound by his prior submission of a certificate of merit under Pennsylvania

Rule of Civil Procedure 1042.3(a)(3), in which he asserted that “expert testimony

of an appropriate licensed professional is unnecessary for prosecution” of his

claim.65 The United States Court of Appeals for the Third Circuit has recently held

in Wilson v. United States66 that “Rule 1042.3’s certificate of merit requirement

does not apply in FTCA cases.”67

Contrary to the facts underlying Wilson v. United States, Cascella has been

given ample time for discovery and has still failed to adduce or present any

evidence—expert or otherwise—of medical malpractice. Additionally, the holding

63 See Doc. 152-18 at 2 (claiming (incorrectly) during deposition that “all my claims are negligent

[sic], simple negligence claims . . . . You try to do it as malpractice. We knocked that out of

the water.”).

64 See Toogood, 824 A.2d at 1150.

65 See Doc. 36.

66 79 F.4th 312 (3d Cir. 2023).

67 Id. at 316.

in Wilson v. United States does not affect the determination that the instant claim

against Dr. Schmidt sounds in professional malpractice rather than simple

negligence, or that expert evidence is required to establish the standard of care,

breach, and proximate causation. That substantive state law remains controlling

for FTCA claims, as the Wilson panel noted.68

D. March 12, 2020 Leg Restraint Incident

Cascella’s final FTCA claim alleges that, on March 12, 2020, Lieutenant

Foura was negligent by applying leg restraints too tightly and causing injury to

Cascella’s legs. Cascella, however, has failed to provide evidence to support the

elements of his prima facie negligence claim and therefore summary judgment

must be granted in Defendant’s favor.

The undisputed facts establish that, on March 12, 2020, Cascella became

agitated when he was ordered to submit to restraints so that he could be moved

from LSCI Allenwood to a medium security facility.69 In lock-step with Dr.

Schmidt’s prior clinical observations that Cascella frequently utilized self-harm (or

threats of self-harm) to manipulate his conditions of confinement,70 Cascella began

cutting his left wrist with a razor blade he acquired sometime after he had returned

to the SHU.71 Cascella refused to drop the razor blade when ordered by staff, so

68 See id. at 317.

69 Doc. 152 ¶ 59.

70 See id. ¶¶ 27, 29, 34, 36, 38, 40.

71 Id. ¶ 59.

chemical agents were deployed to get Cascella to stop his self-injurious conduct.72

Cascella eventually complied with staff orders and was removed from his cell and

taken to Health Services for medical treatment.73 After receiving medical care for

the lacerations on his wrist, and due to his self-injurious behavior and continued

threats of self-harm, Cascella was placed into hard ambulatory restraints around

9:30 a.m.74

Cascella remained in those restraints until 2:00 p.m., approximately four and

a half hours.75 During this time, BOP staff performed all restraint checks required

by policy, including the initial health assessment, 15-minute restraint checks, and

two-hour interval checks by lieutenants.76 While restrained, Cascella was

documented as being verbally abusive, shouting obscenities, threatening prison

staff, refusing his lunch, screaming at the wall, and kicking the cell door.77 He was

also noted at various times to be laying or sitting on his bed, standing against the

wall, and using the toilet.78 During the final lieutenant interval check at 2:00 p.m.,

Lieutenant Victor Castrati determined that Cascella had regained self-control and

appeared compliant, so he discontinued the ambulatory restraints.79

72 Id. ¶ 60.

73 Id. ¶¶ 61-62.

74 Id. ¶ 63.

75 Id. ¶ 76.

76 Id. ¶¶ 76, 77, 78-82; Doc. 152-25 at 2; Doc. 152-26 at 2-3; Doc. 152-27 at 2-3.

77 Doc. 152 ¶ 77. Although Cascella denies refusing his lunch or kicking the cell door, (Doc. 162

at 28 ¶ 77), he does not support his denials with citations to record evidence, (see id.).

78 Doc. 152 ¶ 77.

79 Id. ¶ 82.

The United States first argues that Cascella’s claim that his leg restraints

were secured too tightly is barred by the discretionary function exception. The

Court disagrees.

The governing regulation, 28 C.F.R. § 552.22, provides that restraint

equipment or devices—like the ambulatory restraints employed in the instant

case—“may not be used . . . [i]n a manner that causes unnecessary physical pain or

extreme discomfort.”80 The corresponding BOP policy, Program Statement

P5566.06, further elaborates, “Although the proper application of restraints may

result in some discomfort, prohibited uses of restraints include, but are not limited

to: “hogtying[,]” unnecessarily [sic] tightness, or improperly applied restraints.”81

Consequently, applying ambulatory restraints in an unnecessarily tight manner—as

Cascella alleges—is expressly prohibited by BOP policy and thus not

discretionary.82 The Court, therefore, is not precluded by the discretionary

function exception from adjudicating Cascella’s leg-restraint claim.

Despite having jurisdiction to consider this claim, it nonetheless fails on the

merits. Under Pennsylvania law, to establish the tort of negligence, a plaintiff

must show that “the defendant owed a duty of care to the plaintiff, that duty was

breached, the breach resulted in the plaintiff’s injury, and the plaintiff suffered an

80 28 C.F.R. § 552.22(h)(3); Doc. 163-1 at 9 (BOP Program Statement P5566.06 § 6(h)(3)).

81 Doc. 163-1 at 9 (BOP Program Statement P5566.06 § 6(h)(3)).

82 See Berkovitz, 486 U.S. at 536.

actual loss or damages.”83 Due to a complete absence of evidence, Cascella has

failed to adequately support the second and third elements of his negligence claim.

That is, Cascella has failed to create a genuine dispute of fact as to whether

Lieutenant Foura breached a duty of care owed to Cascella or whether that

purported breach proximately caused Cascella’s injuries.

The United States has proffered competent evidence—both testamentary and

documentary—that Lieutenant Foura (and other BOP staff) performed all the

requisite restraint checks on Cascella and determined that his restraints were

appropriately applied and allowed for proper circulation.84 Although Cascella

adamantly alleges that Foura applied the leg restraints too tightly and caused

lacerations on his legs, allegations are all that Cascella has offered. He has not

identified or provided any competent evidence that would create a genuine dispute

of fact regarding breach or causation. For example, he has not proffered a verified

complaint, declaration, affidavit, witness statement, deposition excerpt, or any

other form of competent evidence that Lieutenant Foura’s conduct breached a duty

of care or that this purported breach proximately caused Cascella’s injuries.

Instead, Cascella merely repeats or embellishes the allegations in his

complaint and points to one medical record showing that—on April 2, 2020—a

83 Kinney-Lindstrom v. Med. Care Availability & Reduction of Error Fund, 73 A.3d 543, 563

n.17 (Pa. 2013) (quoting Merlini ex rel. Merlini v. Gallitzin Water Auth., 980 A.2d 502, 506

(Pa. 2009)).

84 See Doc. 152-21 ¶¶ 17-19, 22; Doc. 152-25 at 2; Doc. 152-26 at 2-3; Doc. 152-27 at 2-3.

medical provider observed “minor” abrasions that were healing on his legs.85

While that medical record may be sufficient to show damages (i.e., that Cascella’s

legs were injured), it does not, by itself, establish breach or proximate cause.

Again, this is not the extremely rare type of res ipsa loquitur case where “an

inference of negligence may be raised without direct evidence of the negligent

act,”86 and Cascella does not argue that it is.

At summary judgment, “[t]he non-moving party cannot rest on mere

pleadings or allegations; rather it must point to actual evidence in the record on

which a jury could decide an issue of fact its way.”87 “In this respect, summary

judgment is essentially ‘put up or shut up’ time for the non-moving party: the non-

moving party must rebut the motion with facts in the record and cannot rest solely

on assertions made in the pleadings, legal memoranda, or oral argument.”88

Cascella’s response to Defendant’s motion for summary judgment displays a

glaring lack of evidence for at least two elements of his final negligence claim. No

reasonable juror could find in Cascella’s favor because he has failed to adduce any

85 See Doc. 162 at 15; Doc. 152-30 at 3. The Court observes that, in Cascella’s documentary

submissions, this April 2, 2020 medical encounter note appears to be modified with several

handwritten notations by Cascella. See Doc. 162-8 at 3-4.

86 Toogood, 824 A.2d at 1146. Three conditions must exist for the doctrine of res ipsa loquitur

to apply: “(1) the injury must be of a type not ordinarily occurring absent negligence; (2) the

defendant must have had exclusive control of the instrumentality effecting the injury; and (3)

the plaintiff must not have contributed to the injury.” Id. These elements are plainly not

present in the case at bar, nor does Cascella argue that they are.

87 El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).

88 Id. (quoting Colkitt, 455 F.3d at 201).

evidence of breach or causation as required by Pennsylvania law. Therefore, the

Court is constrained to grant summary judgment in Defendant’s favor on

Cascella’s final FTCA claim.

IV. CONCLUSION

Based on the foregoing, the Court will dismiss Cascella’s first two FTCA

claims for lack of subject matter jurisdiction and grant Defendant’s motion for

summary judgment as to his third. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge