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Third Circuit: Prison Officials Liable for Failing to Protect Informant
The Third Circuit Court of Appeals held on September 24, 2012 that prison officials may be held liable for failing to protect an informant held in a Special Housing Unit (SHU). The appellate court affirmed in part and reversed in part a Pennsylvania federal district court's order on a motion to dismiss.
The appeal was filed by employees of the Federal Detention Center (FDC) in Philadelphia. At issue was a 108-page, 19-count second amended complaint filed by former FDC prisoner Peter Bistrian. The first five counts alleged violations of Bistrian's Fifth Amendment substantive and procedural due process rights, counts six through nine related to Eighth Amendment violations, count ten was a First Amendment retaliation claim and counts 11 through 19 were brought under the Federal Tort Claims Act.
The district court dismissed 13 of the 19 counts, which Bistrian did not challenge. Moreover, he streamlined the case on appeal by reducing his claims to five counts involving 13 defendants. That left the Third Circuit to consider four Fifth Amendment claims – two for failure to protect, one for punitive detention and one for procedural due process violations – plus the First Amendment retaliation claim.
Bistrian, a federal pretrial detainee, became an orderly while held in the SHU at FDC Philadelphia from January to December 2006. Another SHU prisoner, Steve Northington, asked Bistrian to pass notes to fellow prisoner Kaboni Savage. Northington and Savage were gang members with violent criminal histories.
Bistrian agreed to pass the notes but later advised Lt. J.A. Gibbs and Senior Officers Bowns, Jezior and Bergos that he had done so. They consulted with the FBI, which expressed an interest in the notes because Northington and Savage were defendants in an ongoing drug gang prosecution that involved "substantial witness intimidation, death threats to witnesses and law enforcement, and a firebombing that killed six family members of the Government's chief cooperating witness."
Over the next few weeks, Bistrian continued to pass notes between Northington, Savage and other prisoners. He took each note to the Special Investigative Services Office at FDC Philadelphia, where they were reviewed, copied and sometimes forwarded to the FBI. On one occasion, however, the photocopy of a note was erroneously placed in an envelope and delivered instead of the original note. And on several occasions the notes were not returned to Bistrian, so he was unable to deliver them.
Those incidents led Northington and other prisoners to believe that Bistrian was cooperating with prison officials, and they repeatedly threatened him. Bistrian informed the defendants about the threats both verbally and in writing, but they failed to ensure his safety. On June 30, 2006, Bistrian was attacked by Northington and other prisoners in the SHU's recreation yard. By the time that guards intervened, Bistrian had a dislocated left shoulder, broken teeth and multiple contusions to his head and face that required sutures.
He was again attacked on the recreation yard on October 12, 2006 by a prisoner wielding a razor-type weapon, and required 52 sutures for cuts to his face and body. That attack apparently was unrelated to the note-copying scheme.
Bistrian filed suit in federal court in June 2008. The district court granted in part and denied in part the defendants' motion to dismiss, which argued that Bistrian had "failed to exhaust his administrative remedies, that his claims were untimely, and that he failed to allege sufficient facts to state claims that overcome their entitlement to qualified immunity." The defendants appealed the court's refusal to dismiss the six remaining counts in Bistrian's complaint.
Addressing the pleading standard, the Third Circuit quoted Ashcroft v. Iqbal, 556 U.S. 662 (2009) [PLN, July 2009, p.18]: "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
The Court of Appeals rejected the defendants' argument that "[prison] officials can better protect inmates when they are in the SHU rather than the general population," and thus placing an informant in the SHU shielded them from liability. The appellate court held that the basis of a failure-to-protect claim can be formed where officials are deliberately indifferent to a particular risk an informant faces in the SHU.
The Third Circuit found it was reasonable to infer that the defendants' familiarity with the note-copying scheme, Northington's known history of violence and the threats made to Bistrian meant they were aware he was at risk. Bistrian suffered harm when the defendants failed to act on that risk, and he pleaded causation because he was attacked by other prisoners "because he cooperated with prison officials, not for some other reason."
While the appellate court held that Bistrian's first failure-to-protect claim should proceed, it found his claim related to the second SHU attack should not. That claim was based upon a speculative risk of placing Bistrian in an area with a prisoner with a history of violent assaults. The second attack had occurred for unknown reasons and, according to the Court of Appeals, was apparently "unprovoked, inexplicable, and unrelated to [Bistrian's] participation in the note-copying operation."
The appellate court allowed Bistrian's deliberate indifference claim against Senior Officer Jezior to proceed, based upon allegations that Jezior had delaying intervening to stop the first SHU attack until other guards arrived. Bistrian's claim related to punitive SHU detention for a total of 447 days also was allowed to proceed, as was his procedural due process claim related to his placement and continued detention in the SHU. Finally, the Court of Appeals held that Bistrian's First Amendment retaliation claim could proceed, in which he alleged that he was returned to the SHU after his attorney challenged his previous SHU placements.
The district court's ruling on the defendants' motion to dismiss was therefore affirmed in part and reversed in part, with the Third Circuit dismissing Bistrian's claim related to the second SHU assault while allowing his remaining four claims to proceed. See: Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012).
The case remains pending before the district court on remand, with a settlement conference scheduled for September 4, 2013.
The appeal was filed by employees of the Federal Detention Center (FDC) in Philadelphia. At issue was a 108-page, 19-count second amended complaint filed by former FDC prisoner Peter Bistrian. The first five counts alleged violations of Bistrian's Fifth Amendment substantive and procedural due process rights, counts six through nine related to Eighth Amendment violations, count ten was a First Amendment retaliation claim and counts 11 through 19 were brought under the Federal Tort Claims Act.
The district court dismissed 13 of the 19 counts, which Bistrian did not challenge. Moreover, he streamlined the case on appeal by reducing his claims to five counts involving 13 defendants. That left the Third Circuit to consider four Fifth Amendment claims – two for failure to protect, one for punitive detention and one for procedural due process violations – plus the First Amendment retaliation claim.
Bistrian, a federal pretrial detainee, became an orderly while held in the SHU at FDC Philadelphia from January to December 2006. Another SHU prisoner, Steve Northington, asked Bistrian to pass notes to fellow prisoner Kaboni Savage. Northington and Savage were gang members with violent criminal histories.
Bistrian agreed to pass the notes but later advised Lt. J.A. Gibbs and Senior Officers Bowns, Jezior and Bergos that he had done so. They consulted with the FBI, which expressed an interest in the notes because Northington and Savage were defendants in an ongoing drug gang prosecution that involved "substantial witness intimidation, death threats to witnesses and law enforcement, and a firebombing that killed six family members of the Government's chief cooperating witness."
Over the next few weeks, Bistrian continued to pass notes between Northington, Savage and other prisoners. He took each note to the Special Investigative Services Office at FDC Philadelphia, where they were reviewed, copied and sometimes forwarded to the FBI. On one occasion, however, the photocopy of a note was erroneously placed in an envelope and delivered instead of the original note. And on several occasions the notes were not returned to Bistrian, so he was unable to deliver them.
Those incidents led Northington and other prisoners to believe that Bistrian was cooperating with prison officials, and they repeatedly threatened him. Bistrian informed the defendants about the threats both verbally and in writing, but they failed to ensure his safety. On June 30, 2006, Bistrian was attacked by Northington and other prisoners in the SHU's recreation yard. By the time that guards intervened, Bistrian had a dislocated left shoulder, broken teeth and multiple contusions to his head and face that required sutures.
He was again attacked on the recreation yard on October 12, 2006 by a prisoner wielding a razor-type weapon, and required 52 sutures for cuts to his face and body. That attack apparently was unrelated to the note-copying scheme.
Bistrian filed suit in federal court in June 2008. The district court granted in part and denied in part the defendants' motion to dismiss, which argued that Bistrian had "failed to exhaust his administrative remedies, that his claims were untimely, and that he failed to allege sufficient facts to state claims that overcome their entitlement to qualified immunity." The defendants appealed the court's refusal to dismiss the six remaining counts in Bistrian's complaint.
Addressing the pleading standard, the Third Circuit quoted Ashcroft v. Iqbal, 556 U.S. 662 (2009) [PLN, July 2009, p.18]: "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
The Court of Appeals rejected the defendants' argument that "[prison] officials can better protect inmates when they are in the SHU rather than the general population," and thus placing an informant in the SHU shielded them from liability. The appellate court held that the basis of a failure-to-protect claim can be formed where officials are deliberately indifferent to a particular risk an informant faces in the SHU.
The Third Circuit found it was reasonable to infer that the defendants' familiarity with the note-copying scheme, Northington's known history of violence and the threats made to Bistrian meant they were aware he was at risk. Bistrian suffered harm when the defendants failed to act on that risk, and he pleaded causation because he was attacked by other prisoners "because he cooperated with prison officials, not for some other reason."
While the appellate court held that Bistrian's first failure-to-protect claim should proceed, it found his claim related to the second SHU attack should not. That claim was based upon a speculative risk of placing Bistrian in an area with a prisoner with a history of violent assaults. The second attack had occurred for unknown reasons and, according to the Court of Appeals, was apparently "unprovoked, inexplicable, and unrelated to [Bistrian's] participation in the note-copying operation."
The appellate court allowed Bistrian's deliberate indifference claim against Senior Officer Jezior to proceed, based upon allegations that Jezior had delaying intervening to stop the first SHU attack until other guards arrived. Bistrian's claim related to punitive SHU detention for a total of 447 days also was allowed to proceed, as was his procedural due process claim related to his placement and continued detention in the SHU. Finally, the Court of Appeals held that Bistrian's First Amendment retaliation claim could proceed, in which he alleged that he was returned to the SHU after his attorney challenged his previous SHU placements.
The district court's ruling on the defendants' motion to dismiss was therefore affirmed in part and reversed in part, with the Third Circuit dismissing Bistrian's claim related to the second SHU assault while allowing his remaining four claims to proceed. See: Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012).
The case remains pending before the district court on remand, with a settlement conference scheduled for September 4, 2013.
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Related legal case
Bistrian v. Levi
| Year | 2012 |
|---|---|
| Cite | 696 F.3d 352 (3d Cir. 2012) |
| Level | Court of Appeals |