United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
Robert Jesse Smallwood, a former federal inmate who was previously housed at the United States Penitentiary in Pine Knot, Kentucky, filed this action asserting Bivens and FTCA claims arising from an assault inflicted on him at the hands of another inmate. The United States filed a Motion to Dismiss, or in the Alternative, a Motion for Summary Judgment, [R. 52], to which Smallwood has filed no response even after a show cause order. For the foregoing reasons, the United States' motion is GRANTED.
On January 30, 1990, Robert Jesse Smallwood was sentenced in the Western District of Texas to a term of 288 months imprisonment, followed by five years of supervised release, after pleading guilty to possession with intent to distribute methamphetamine and possession of chemicals with intent to manufacture a controlled substance in violation of 21 U.S.C. §§ 841(A)(1) and 841(D)(1). Smallwood was housed at the United States Penitentiary in Pine Knot, Kentucky (USP McCreary) from May 22, 2008 to October 20, 2008. Smallwood was subsequently released from custody on June 10, 2011.
The instant suit arises out of an assault at USP McCreary. Smallwood alleges that on September 5, 2008, he was placed in a cell with Inmate B.P.1 [R. 50 at ¶ 17]. On September 20, 2008, he was attacked by Inmate B.P. [R. 50 at ¶ 17]. As a result of the attack, he suffered head injuries, including brain hemorrhages and fractured facial bones; he was comatose for several days and claims he also suffered mental incapacitation. [Id. at § 18].
The assault by Inmate B.P. is recounted in Incident Reports 1780300, 1780301, 1780302, and 1780304. [ See Dec. of Martinez, ¶ 8, Attachment E, DHO Reports, R. 52-8]. On September 20, 2008, at 4:15 p.m., prison staff heard yelling coming from the cell occupied by Smallwood and Inmate B.P. By the time staff arrived, officers observed Inmate B.P. standing over Smallwood, who was lying on the floor immobile and was bleeding profusely from his face. Inmate B.P. kicked Smallwood several more times in the face, but after a scuffle with prison staff, B.P. was restrained. Smallwood was transported to the Scott County Hospital and was airlifted to the University of Tennessee Medical Center in Knoxville, Tennessee. Inmate B.P. subsequently faced criminal charges for assault resulting in serious bodily injury to Smallwood and three counts of assault of a federal official. [ United States v. B.P., 09-CR-00031-GFVT, filed May 29, 2009; Dec. of Martinez at ¶ 8]. According to investigation materials from the Incident Reports, both Smallwood and B.P. had been drinking alcohol prior to the incident. [Dec. of Martinez, ¶ 8, Attachment E, DHO Reports, R. 52-8]. In a hearing, Inmate B.P. indicated that he had no recollection of what took place that afternoon of the incident. [ Id. ]
Smallwood has been incarcerated with the Bureau of Prisons (BOP) since 1990. [Dec. of Martinez at ¶ 9, Attachment A, R. 52-3]. He has incurred seventeen disciplinary actions, fourteen of which were related to use and possession of intoxicants or drugs. [Dec. of Martinez at ¶ 9, Attachment F, Robert Smallwood Chronological Disciplinary Record, R. 52-9 at ¶ 9]. He has also been disciplined for assaulting another inmate. [ Id. ] Inmate B.P. has been incarcerated with the BOP since 1995. [Dec. of Martinez at ¶ 9, Attachment G, B.P. Chronological Disciplinary Record, R. 52-10 at ¶ 9]. Prior to the underlying assault, Inmate B.P. had four incidents of fighting or assaulting another person. [ Id. ] Only one of these incidents occurred at USP McCreary. On June 26, 2008, B.P. and two other inmates were seen hitting another inmate with closed fists. [Dec. of Martinez at ¶ 9, Attachment I, Inmate B.P. DHO Report 1748107, R. 52-11]. After being ordered to stop the assault, the inmates complied and separated without further incident. [ Id. ] Smallwood and Inmate B.P. were previously housed together at USP Beaumont, Texas between May 2007 and May 2008 without incident. [Dec. of Martinez at ¶ 10, Attachment A, R. 52-3 at 8; Attachment G, R. 52-10 at 7-8; Attachment J, R. 52-13]. The two inmates were members of the same gang and BOP officials observed nothing that would indicate a conflict between the two prior to the September 20, 2008 assault. [ Id. ]
Smallwood has filed sixteen Administrative Remedies since his initial incarceration with the BOP began in 1990. [Dec. of Martinez at ¶ 7, Attachment C, R. 52-6]. Seven of those addressed allegations of inadequate medical care after the September 20, 2008 assault. [ Id., Attachment D, Administrative Remedy No. 544012, R. 52-7].
On September 15, 2010, Smallwood also filed an administrative tort claim regarding his placement with Inmate B.P. at USP McCreary. [Dec. of Martinez at ¶ 6, R. 50-1, Exhibit A (2), Form 95; R. 50-2, Exhibit B Track and Confirm Search Results]. Smallwood claimed that, in light of B.P.'s alleged mental issues and prior history of violence, the United States was negligent in placing him in the same cell as B.P. [R. 50-1 at 2]. He also sought $2, 000, 000 in personal injury for the injuries he suffered as a result of the September 20, 2008 assault. [ Id. ] On April 25, 2011, the Mid-Atlantic Regional Counsel denied Smallwood's administrative tort claim. [Dec. of Martinez at ¶ 6, Attachment B, TRT-MXR-2011-00215, R. 52-5 at 4]. The Counsel advised Smallwood of its decision by letter delivered to his last known home address and informed him that he had six months to file a complaint in the appropriate district court. [ Id. ]
Smallwood filed the instant suit with this Court on September 20, 2010. [R. 1]. In his most recent Amended Complaint, [R. 50], Smallwood brings both a Bivens action and a Federal Tort Claims Act claim arising from this incident. In his Bivens action, he claims that his Eighth Amendment right against cruel and unusual punishment was violated when the Bureau of Prisons failed to protect him, an inmate, from prison violence at the hands of other inmates. [ Id. at ¶ 19]. He does not name any defendant in his or her personal capacity, however. He also brings a claim under the Federal Tort Claims Act, alleging that the United States negligently failed to protect Smallwood from the attack and, ostensibly, that the United States was negligent in making safety and security decisions relating to his cell placement with Inmate B.P. [ Id. at ¶ 21]. He also brings claims alleging gross negligence and "intentional or negligent infliction of emotional distress, " apparently pursuant to the FTCA. [ Id. at ¶ 20, 22].
After withdrawing an earlier motion to dismiss based on an prior version of the Complaint,  the United States filed the instant Motion to Dismiss, or in the Alternative, a Motion for Summary Judgment on April 1, 2014. [R. 52]. Smallwood, who is represented by counsel, did not file a response. On January 21, 2015, the Court entered an order demanding that Smallwood show cause as to why no response was filed. [R. 53]. Again, Smallwood did not file a response to the Show Cause Order, nor did he request an extension of time to file a response to the Motion to Dismiss. Accordingly, this Court will treat the Motion to Dismiss or Motion for Summary Judgment as unopposed - though it must still engage in an analysis of the movant's arguments. Miller v. Shore Fin. Servs., Inc., 141 F.Appx. 417, 419 (6th Cir. 2005) (citing Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir.1998)) (noting that, notwithstanding local rules regarding response times, "[w]hen a non-moving party fails to respond, ... the district court must, at a minimum, examine the moving party's motion for summary judgment to ensure that it has discharged its initial burden.").
The United States moves to dismiss Smallwood's Bivens action pursuant to Federal Rule of Civil Procedure 12(b)(6), which allows a defendant to seek dismissal of a complaint which fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil Procedure 8 requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). However, as is now well known, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a plaintiff need not provide "detailed factual allegations, " he must advance more than "a formulaic recitation of the elements of a cause of action." Id. (citing Twombly, 550 U.S. at 555). A court reviewing a 12(b)(6) motion must "accept all the Plaintiffs' factual allegations as true and construe the complaint in the light most favorable to the Plaintiffs, " Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005), but it is "not bound to accept as true a ...