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United States District Court Middle District of Pennsylvania (Harrisburg) CIVIL DOCKET FOR CASE #: 1:17-cv-01011-JPW-SES

McCreary et al v. The Federal Bureau of Prisons et al Assigned to: Honorable Jennifer P. Wilson Referred to: Magistrate Judge Susan E. Schwab Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 06/09/2017 Date Terminated: 03/24/2021 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff Jusamuel Rodriguez McCreary

represented by Alexandra T Morgan-Kurtz PA Institutional Law Project 100 Fifth Ave Suite 900 Pittsburgh, PA 15222 412-434-6175 Email: amorgan-kurtz@pailp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin H. Metz Latham & Watkins LLP 555 Eleventh Street NW Suite 1000 Washington, DC 20004 202-637-2200 Email: kevin.metz@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marissa R. Boynton Latham & Watkins LLP 555 Eleventh Street NW Sutie 1000 Washington, DC 20004 202-637-2200 Email: marissa.boynton@lw.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip J. Fornaci Washington Lawyers Commitee for Civil Rights 11 Dupont Circlt, NW Suite 400 Washington, DC 20036 202-319-1000 Email: phil_fornaci@washlaw.org TERMINATED: 06/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy B. Ernst Pennsylvania Institutional Law Project 115 Farley Circle Suite 110 Lewisburg, PA 17837 570-523-1104 Email: AErnst@pailp.org TERMINATED: 02/16/2021 ATTORNEY TO BE NOTICED
Drew R Wisniewski Latham & Watkins LLP 555 11th Street NW Suite 1000 Washington, DC 20004 202-637-2200 Email: drew.wisniewski@lw.com ATTORNEY TO BE NOTICED
James Davy Jim Davy P.O. Box 15216 Pennsylvania, PA 19125 609-273-5008 Email: jimdavy@allriselaw.org TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
Katherine B Palmer-Ball Latham & Watkins LLP

Plaintiff Richard C. Anamanya

555 Eleventh Street, NW Suite 1000 Washington, DC 20004 (202) 637-2200 Email: katherine.palmerball@lw.com TERMINATED: 04/29/2019 ATTORNEY TO BE NOTICED
Lyndsay A. Niles Washington Lawyers' Committee for Civil Rights and Urba 700 14th Street NW Suite 400 Washington, DC 20005 202-319-1000 ext. 134 Email: lyndsay_niles@washlaw.org TERMINATED: 06/17/2020 ATTORNEY TO BE NOTICED
represented by Alexandra T Morgan-Kurtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin H. Metz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marissa R. Boynton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip J. Fornaci (See above for address) TERMINATED: 06/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy B. Ernst (See above for address) TERMINATED: 02/16/2021 ATTORNEY TO BE NOTICED

Plaintiff Joseph R. Coppola

Drew R Wisniewski (See above for address) ATTORNEY TO BE NOTICED
James Davy (See above for address) TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
Katherine B Palmer-Ball (See above for address) TERMINATED: 04/29/2019 ATTORNEY TO BE NOTICED
Lyndsay A. Niles (See above for address) TERMINATED: 06/17/2020 ATTORNEY TO BE NOTICED
represented by Alexandra T Morgan-Kurtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin H. Metz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marissa R. Boynton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip J. Fornaci (See above for address) TERMINATED: 06/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy B. Ernst (See above for address) TERMINATED: 02/16/2021 ATTORNEY TO BE NOTICED

V. Defendant The Federal Bureau of Prisons
Defendant

Drew R Wisniewski (See above for address) ATTORNEY TO BE NOTICED
James Davy (See above for address) TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
Katherine B Palmer-Ball (See above for address) TERMINATED: 04/29/2019 ATTORNEY TO BE NOTICED
Lyndsay A. Niles (See above for address) TERMINATED: 06/17/2020 ATTORNEY TO BE NOTICED
represented by George Michael Thiel U.S. Attorney's Office 235 N. Washington Ave P.O. Box 309 Scranton, PA 18503 570-348-2800 Email: mike.thiel@usdoj.gov ATTORNEY TO BE NOTICED
Timothy S. Judge U.S. Attorney's Office - Civil Litigation Units William J. Nealon Federal Building and U.S. Courthouse 235 N. Washington Avenue Scranton, PA 18507 570-348-2800 Email: timothy.judge@usdoj.gov ATTORNEY TO BE NOTICED

Mark S. Inch Director of the FOB
Defendant David J. Ebbert

represented by George Michael Thiel (See above for address) ATTORNEY TO BE NOTICED
Timothy S. Judge (See above for address) ATTORNEY TO BE NOTICED
represented by George Michael Thiel (See above for address) ATTORNEY TO BE NOTICED
Timothy S. Judge (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/09/2017 06/09/2017
06/09/2017 06/12/2017

#

Docket Text

1 COMPLAINT against All Defendants ( Filing fee $400, Receipt Number 0314-4112963) filed by Richard C. Anamanya, Jusamuel Rodriguez McCreary, Joseph R. Coppola. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit(s))(ve) (Entered: 06/09/2017)

2 Summons Issued as to All Defendants and provided TO ATTORNEY ELECTRONICALLY VIA ECF for service on Defendant(s)in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure. (NOTICE TO ATTORNEYS RECEIVING THE SUMMONS ELECTRONICALLY: You must print the summons and the attachment when you receive it in your e-mail and serve them with the complaint on all defendants in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure). (Attachments: # 1 Summons Packet) (ve) (Entered: 06/09/2017)

SPECIAL ADMISSION FORM SENT to Attorney(s) Metz. Fornaci, Boynton electronically. (ve) (Entered: 06/09/2017)

3 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Kevin H. Metz on behalf of Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary Attorney Kevin Metz is seeking special admission. Filing fee $ 50, receipt number 03144114419.. (Metz, Kevin) (Entered: 06/12/2017)

06/12/2017
06/12/2017
06/14/2017 06/15/2017 06/15/2017 06/15/2017 07/14/2017 07/14/2017 07/14/2017 07/14/2017

4 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Marissa R. Boynton on behalf of Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary Attorney Marissa Boynton is seeking special admission. Filing fee $ 50, receipt number 0314-4114522.. (Boynton, Marissa) (Entered: 06/12/2017)
5 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Philip J. Fornaci on behalf of Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary Attorney Philip Fornaci is seeking special admission.. (Fornaci, Philip) (Entered: 06/12/2017)
DOCKET ANNOTATION: Petitioner(s) Boynton, Fornaci and Metz & Associate Counsel Morgan-Kurtz- Bar Status Verified. (ve) (Entered: 06/14/2017)
6 SPECIAL ADMISSIONS FORM APPROVED as to Kevin H. Metz, Esquire. Signed by Honorable Yvette Kane on 6/15/17. (rw) (Entered: 06/15/2017)
7 SPECIAL ADMISSIONS FORM APPROVED as to Phillip Fornaci, Esquire. Signed by Honorable Yvette Kane on 6/15/17. (rw) (Entered: 06/15/2017)
8 SPECIAL ADMISSIONS FORM APPROVED as to Marissa R. Boynton, Esquire. Signed by Honorable Yvette Kane on 6/15/17. (rw) (Entered: 06/15/2017)
9 SUMMONS Returned Executed by Richard C. Anamanya, Jusamuel Rodriguez McCreary, Joseph R. Coppola. The Federal Bureau of Prisons served on 7/3/2017, answer due 9/1/2017. (Boynton, Marissa) (Entered: 07/14/2017)
10 SUMMONS Returned Executed by Richard C. Anamanya, Jusamuel Rodriguez McCreary, Joseph R. Coppola. Thomas R. Kane served on 7/3/2017, answer due 9/1/2017. (Boynton, Marissa) (Entered: 07/14/2017)
11 SUMMONS Returned Executed by Richard C. Anamanya, Jusamuel Rodriguez McCreary, Joseph R. Coppola. David J. Ebbert served on 7/3/2017, answer due 9/1/2017. (Boynton, Marissa) (Entered: 07/14/2017)
12 RETURN OF SERVICE (Non Summons & Complaint) by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary re 1 Complaint US Attorney General (Boynton, Marissa) (Entered: 07/14/2017)

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08/25/2017

13 RETURN OF SERVICE (Non Summons & Complaint) by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary re 1 Complaint US Attorney (Boynton, Marissa) (Entered: 07/14/2017)
14 MOTION to Certify Class by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Metz, Kevin) (Entered: 08/11/2017)
15 MOTION to Exceed Page Limitation by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Metz, Kevin) (Entered: 08/17/2017)
16 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Katherine B Palmer-Ball on behalf of Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary Attorney Katherine Palmer-Ball is seeking special admission. Filing fee $ 50, receipt number 0314-4175460.. (Palmer-Ball, Katherine) (Entered: 08/18/2017)
DOCKET ANNOTATION: Counsel is advised to file a Professional Code of Conduct form for Doc. 16 using the event: Civil Events Other Filings Other Documents-Includes Social Security Transcript and Brief Events - document Filed. (pjr) (Entered: 08/18/2017)
17 CODE OF PROFESSIONAL CONDUCT by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. . (Palmer-Ball, Katherine) (Entered: 08/21/2017)
18 ORDER granting 15 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Susan E. Schwab on 8/21/2017 (ktt) (Entered: 08/21/2017)
DOCKET ANNOTATION: Petitioner Palmer-Ball & Associate Counsel Morgan-Kurtz: Bar Status Verified. (ve) (Entered: 08/22/2017)
19 BRIEF IN SUPPORT re 14 MOTION to Certify Class filed by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Unpublished Opinion(s))(Metz, Kevin) (Entered: 08/23/2017)
20 SPECIAL ADMISSIONS FORM APPROVED as to Katherine Palmer-Bell. Signed by Magistrate Judge Susan E. Schwab on 8/25/2017. (ktt) (Entered: 08/25/2017)

08/31/2017 09/05/2017 10/02/2017 10/06/2017 10/06/2017 10/12/2017 10/13/2017 10/16/2017 10/16/2017

21 Unopposed MOTION for Extension of Time to Respond to Complaint and Motion for Class Certification by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Judge, Timothy) (Entered: 08/31/2017)
22 ORDER granting 21 Motion to Extend Time. Signed by Magistrate Judge Susan E. Schwab on 9/5/2017 (ktt) (Entered: 09/05/2017)
23 MOTION to Dismiss or in the alternative, MOTION for Summary Judgment by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Judge, Timothy) (Entered: 10/02/2017)
24 MOTION to Stay re 14 MOTION to Certify Class by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Judge, Timothy) (Entered: 10/06/2017)
25 BRIEF IN SUPPORT re 24 MOTION to Stay re 14 MOTION to Certify Class filed by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons.(Judge, Timothy) (Entered: 10/06/2017)
26 Unopposed MOTION to Exceed Page Limitation by Thomas R. Kane, The Federal Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Judge, Timothy) (Entered: 10/12/2017)
27 ORDER granting 26 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Susan E. Schwab on 10/13/2017 (ktt) (Entered: 10/13/2017)
28 STATEMENT OF FACTS re 23 MOTION to Dismiss or in the alternative MOTION for Summary Judgment filed by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons. (Attachments: # 1 Certificate of Service for Mailed Exhibits (filed in person via disc))(Judge, Timothy) (Entered: 10/16/2017)
29 BRIEF IN SUPPORT re 23 MOTION to Dismiss or in the alternative MOTION for Summary Judgment filed by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons.(Judge, Timothy) (Entered: 10/16/2017)

10/16/2017 10/16/2017 10/20/2017
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30 EXHIBITS 1 & 2 filed by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons re 28 Statement of Facts. (Attachments: # 1 Exhibit(s) 2)(ve) (Entered: 10/19/2017)
31 EXHIBIT 3 filed by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons re 28 Statement of Facts. (Attachments: # 1 Exhibit(s) 3 - Redacted 1 of 3, # 2 Exhibit(s) 3 - Redacted 2 of 3, # 3 Exhibit(s) 3 - Redacted 3 of 3)(ve) (Entered: 10/19/2017)
32 Unopposed MOTION for Extension of Time to File Response in Opposition to Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Metz, Kevin) (Entered: 10/20/2017)
33 BRIEF IN OPPOSITION re 24 MOTION to Stay re 14 MOTION to Certify Class filed by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Appendix of Unpublished Authority)(Metz, Kevin) (Entered: 10/20/2017)
34 ORDER granting 32 Motion for Extension of Time to File. Signed by Magistrate Judge Susan E. Schwab on 10/24/2017 (ktt) (Entered: 10/24/2017)
35 REPLY BRIEF re 24 MOTION to Stay re 14 MOTION to Certify Class filed by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons.(Thiel, G.) (Entered: 11/03/2017)
36 Unopposed MOTION to Exceed Page Limitation by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Metz, Kevin) (Entered: 11/17/2017)
37 ORDER granting 36 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Susan E. Schwab on 11/20/2017 (ktt) (Main Document 37 replaced on 11/20/2017) (ktt). (Entered: 11/20/2017)
38 BRIEF IN OPPOSITION re 23 MOTION to Dismiss or in the alternative MOTION for Summary Judgment filed by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Exhibit A, # 2 Unpublished Opinion(s))(Metz, Kevin) (Entered: 11/24/2017)

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39 STATEMENT OF FACTS re 38 Brief in Opposition to Motion for Summary Judgment, filed by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary.(Metz, Kevin) (Entered: 11/24/2017)
40 ORDER - IT IS HEREBY ORDERED that a telephonic conference is scheduled for December 7, 2017, at 10:00 a.m., to discuss the status of pending motions. Counsel for the plaintiffs shall initiate the call. Signed by Chief Magistrate Judge Susan E. Schwab on November 27, 2017. (kjn) (Entered: 11/27/2017)
41 Unopposed MOTION for Extension of Time to File Brief (Reply Brief MTD or alter, MSJ filed by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Judge, Timothy) (Entered: 12/06/2017)
43 ORDER granting 41 Motion for Extension of Time to File Response/Reply. Reply Brief due by 12/22/2017. Signed by Magistrate Judge Susan E. Schwab on 12/7/2017 (ktt) (Entered: 12/07/2017)
44 ORDER granting 24 Motion to Stay. IT IS ORDERED that defendants' motion to stay (doc. 24) IS GRANTED. Plaintiffs pending motion to certify class (doc. 14) is STAYED pending the disposition of the pending motion to dismiss or, in the alternative motion for summary judgement. Signed by Magistrate Judge Susan E. Schwab on 12/7/2017 (ktt) (Entered: 12/07/2017)
45 MOTION for Protective Order to Stay Discovery by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Judge, Timothy) (Entered: 12/21/2017)
46 BRIEF IN SUPPORT re 45 MOTION for Protective Order to Stay Discovery filed by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons.(Judge, Timothy) (Entered: 12/21/2017)
47 EXHIBIT 1 by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons re 46 Brief in Support. (Judge, Timothy) (Entered: 12/22/2017)
48 REPLY BRIEF re 23 MOTION to Dismiss or in the alternative MOTION for Summary Judgment filed by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons. (Attachments: # 1 Certificate of Compliance with Word Count)(Judge, Timothy) (Entered: 12/22/2017)

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06/20/2018

49 BRIEF IN OPPOSITION re 45 MOTION for Protective Order to Stay Discovery filed by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Appendix of Unpublished Authority)(Metz, Kevin) (Entered: 01/04/2018)
50 REPLY BRIEF re 45 MOTION for Protective Order to Stay Discovery filed by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons.(Judge, Timothy) (Entered: 01/18/2018)
51 NOTICE of Appearance by James Davy on behalf of All Plaintiffs (Davy, James) (Entered: 02/07/2018)
52 MOTION to File Document Under Seal filed by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary.(ve) (Entered: 04/03/2018)
53 DOCUMENT(S) PENDING SEALING DECISION (Attachments: # 1 Declaration, # 2 Proposed Order) (ve) (Entered: 04/03/2018)
54 APPENDIX OF UNPUBLISHED AUTHORITY filed by Joseph R. Coppola. (Attachments: # 1 Part 2)(pjr) (Entered: 04/09/2018)
55 BRIEF IN OPPOSITION re 52 MOTION to File Document Under Seal filed by David J. Ebbert, Thomas R. Kane, The Federal Bureau of Prisons.(Judge, Timothy) (Entered: 04/17/2018)
56 REPLY BRIEF re 52 MOTION to File Document Under Seal filed by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Declaration, # 2 Appendix of Unpublished Authority)(Metz, Kevin) (Entered: 05/01/2018)
57 ORDER denying 52 Motion to Seal Document 53 DOCUMENT(S) PENDING SEALING DECISION. Based upon the foregoing, the Court concludes that the Plaintiffs have not overcome the presumption that favors the public right of access to judicial records. Thus, IT IS HEREBY ORDERED that the Plaintiffs' motion to seal (doc. 52) is DENIED without prejudice. Signed by Magistrate Judge Susan E. Schwab on 5/31/2018 (ktt) (Entered: 05/31/2018)
58 REPORT AND RECOMMENDATIONS re 23 MOTION to Dismiss or in the alternative MOTION for Summary Judgment filed by David J. Ebbert, The Federal Bureau of Prisons, Thomas R. Kane, 45 MOTION for Protective Order to Stay Discovery filed by David J. Ebbert, The Federal Bureau of Prisons, Thomas R. Kane. Objections to R&R due by 7/5/2018Signed by

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Magistrate Judge Susan E. Schwab on 6/20/2018. (ktt) (Entered: 06/20/2018)
59 OBJECTION to 58 Report and Recommendations by David J. Ebbert, Mark S. Inch, The Federal Bureau of Prisons. (Judge, Timothy) (Entered: 07/03/2018)
60 BRIEF IN SUPPORT re 58 REPORT AND RECOMMENDATIONS re 23 MOTION to Dismiss or in the alternative MOTION for Summary Judgment filed by David J. Ebbert, The Federal Bureau of Prisons, Thomas R. Kane, 45 MOTION for Protective Order to Stay Discover filed by David J. Ebbert, Mark S. Inch, The Federal Bureau of Prisons.(Judge, Timothy) (Entered: 07/03/2018)
61 OBJECTION to 58 Report and Recommendations . (Metz, Kevin) (Entered: 07/05/2018)
62 RESPONSE by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary to 59 Objection to Report and Recommendations . (Metz, Kevin) (Entered: 07/17/2018)
63 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Lyndsay A. Niles on behalf of Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary Attorney Lyndsay Niles is seeking special admission.. (Niles, Lyndsay) (Entered: 07/17/2018)
DOCKET ANNOTATION: Counsel is advised to file a Code of Professional Conduct Form for Doc. 63. Form must be signed. Do no refile the Petition. (dmn) (Entered: 07/17/2018)
64 CODE OF PROFESSIONAL CONDUCT by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. 63 Petition for Special Admission - Pro Hac Vice . (Niles, Lyndsay) (Entered: 07/17/2018)
DOCKET ANNOTATION: Petitioner Lyndsay Niles and Associate Counsel Alexandra Morgan-Kurtz - bar status verified. (dmn) (Entered: 07/18/2018)
65 SPECIAL ADMISSIONS FORM APPROVED as to Lyndsay Niles.Signed by Honorable Yvette Kane on 7/23/18. (dmn) (Entered: 07/23/2018)
66 Letter from All Parties Requesting a Telephonic Conference. (Metz, Kevin) (Entered: 09/05/2018)

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67 SCHEDULING ORDER: Telephone Status Conference set for 9/24/2018 at 3:00 PM before Magistrate Judge Susan E. Schwab. Signed by Magistrate Judge Susan E. Schwab on 9/14/2018. (ktt) (Entered: 09/14/2018)

69 Unopposed MOTION to Withdraw 59 Objection to Report and Recommendations by David J. Ebbert, Mark S. Inch, The Federal Bureau of Prisons. (Attachments: # 1 Stipulation, # 2 Certificate of Concurrence, # 3 Proposed Order)(Judge, Timothy) (Entered: 09/28/2018)

70 Unopposed MOTION to Withdraw 61 Objection to Report and Recommendations by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Exhibit A Joint Stipulation, # 2 Certificate of Concurrence, # 3 Proposed Order)(Metz, Kevin) (Entered: 09/28/2018)

Letter from Kevin Metz Regarding Protective Order. (Metz,

71

Kevin) (Entered: 10/03/2018)

Letter from Timothy S. Judge . (Judge, Timothy) (Entered:

72

10/03/2018)

73 CASE MANAGEMENT PLAN (Joint) by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Metz, Kevin) (Entered: 10/22/2018)

74 ORDER - IT IS ORDERED THAT: 1. Defendants unopposed motion to withdraw Defendants objections to the Report and Recommendation (Doc. No. 69), is GRANTED; 2. Defendants objections to the Report and Recommendation (Doc. No. 59), are deemed WITHDRAWN; 3. Plaintiffs unopposed motion to withdraw Plaintiffs objections to the Report and Recommendation (Doc. No. 70), is GRANTED; 4. Plaintiffs objections to the Report and Recommendation (Doc. No. 61), are deemed WITHDRAWN; 5. The Report and Recommendation (Doc. No. 58), of Chief Magistrate Judge Schwab is ADOPTED as follows: (a) The Report and Recommendation is ADOPTED insofar as it recommends denial of Defendants motion to dismiss, or in the alternative, motion for summary judgment (Doc. No. 23), and denial of Defendants motion to stay discovery (Doc. No. 45); (b) Defendants motion to dismiss or, in the alternative, motion for summary judgment (Doc. No. 23), is DENIED; (c) Defendants motion to stay discovery (Doc. No. 45), is DENIED as moot; and 6. The above-captioned action is RECOMMITTED to Chief Magistrate Judge Schwab for further pretrial management. Signed

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by Honorable Yvette Kane on 10/26/2018 (ve) (Entered: 10/26/2018)

75 ANSWER to 1 Complaint by David J. Ebbert, Mark S. Inch, The Federal Bureau of Prisons.(Judge, Timothy) (Entered: 11/09/2018)

PROTECTIVE ORDER - Accordingly, IT IS ORDERED AS

76

FOLLOWS:(1) The plaintiffs' motion for a protective order is

GRANTED. (2) The plaintiffs' proposed protective order (doc. 71

at 4-13) is ADOPTED. SEE ORDER FOR COMPLETE

DETAILS. Signed by Magistrate Judge Susan E. Schwab on

11/27/2018. (ktt) (Entered: 11/27/2018)

77 SCHEDULING ORDER: Case Management Conference set for 1/10/2019 at 10:15 AM before Magistrate Judge Susan E. Schwab. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Susan E. Schwab on 11/29/2018. (ktt) (Entered: 11/29/2018)

78 CASE MANAGEMENT PLAN (Joint) by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Protective Order)(Metz, Kevin) (Entered: 12/21/2018)

79 ORDER - IT IS ORDERED that the telephonic case management conference scheduled for January 10, 2019 is CANCELED. The case management conference will be rescheduled once the lapse in appropriations concludes. Signed by Magistrate Judge Susan E. Schwab on 1/9/2019. (ktt) (Entered: 01/09/2019)

80 SCHEDULING ORDER: Case Management Conference reset for 2/20/2019 at 11:00 AM before Magistrate Judge Susan E. Schwab. Signed by Magistrate Judge Susan E. Schwab on 2/6/2019. (ktt) (Entered: 02/06/2019)

81 MOTION to Withdraw as Attorney by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary.(Davy, James) (Additional attachment(s) added on 2/15/2019: # 1 Proposed Order) (rw). (Entered: 02/15/2019)

82 ORDER granting 81 Motion to Withdraw as Attorney. Attorney James Davy terminated. Signed by Magistrate Judge Susan E. Schwab on 2/19/2019 (ktt) (Entered: 02/19/2019)

84 CASE MANAGEMENT ORDER - The following case management order is entered in this matter. Close of Fact Discovery due by 10/28/2019. Plaintiff Expert Report is due by 11/27/2019. Defendant Expert Report is due by 1/13/2020. Expert Discovery Deadline is due by 3/13/2020. SEE ORDER FOR

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COMPLETE DETAILS. Signed by Magistrate Judge Susan E. Schwab on 2/22/2019. (ktt) (Entered: 02/22/2019)
Set Hearings: Telephone Status Conference set for 10/3/2019 at 10:00 AM before Magistrate Judge Susan E. Schwab. (ktt) (Entered: 02/22/2019)
85 ORDER - Pursuant to the telephonic case management conference held on February 20, 2019, IT IS ORDERED that plaintiffs' pending motion to certify class 14 isDENIED without prejudice. IT IS FURTHER ORDERED that the following briefing schedule is entered in regard to plaintiffs' motion to certify class. Signed by Magistrate Judge Susan E. Schwab on 2/22/2019. (ktt) (Entered: 02/22/2019)
86 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Drew R Wisniewski on behalf of Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary Attorney Drew Wisniewski is seeking special admission. Filing fee $ 50, receipt number 0314-4727222.. (Wisniewski, Drew) (Entered: 04/09/2019)
DOCKET ANNOTATION: Petitioning attorney and associate counsel's bar status verified. (aaa) (Entered: 04/10/2019)
87 SPECIAL ADMISSIONS FORM APPROVED as to Drew R. Wisniewski. Signed by Magistrate Judge Susan E. Schwab on 4/10/2019. (ktt) (Entered: 04/10/2019)
88 MOTION to Withdraw as Attorney by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Palmer-Ball, Katherine) (Entered: 04/11/2019)
89 ORDER granting 88 Motion to Withdraw as Attorney. Attorney Katherine B Palmer-Ball terminated. Signed by Magistrate Judge Susan E. Schwab on 4/29/2019 (ktt) (Entered: 04/29/2019)
91 First MOTION to Withdraw as Attorney Philip Fornaci by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary.(Fornaci, Philip) (Entered: 06/19/2019)
DOCKET ANNOTATION: Per attorney Philip Fornaci's request docket entry #90 deleted. Filed in error. (ktt) (Entered: 06/19/2019)

06/19/2019 06/28/2019 06/28/2019 08/27/2019 08/29/2019 08/30/2019 08/30/2019 09/04/2019
09/04/2019

92 ORDER granting 91 Motion to Withdraw as Attorney. Attorney Philip J. Fornaci terminated.Signed by Magistrate Judge Susan E. Schwab on 6/19/2019 (ktt) (Entered: 06/19/2019)
93 Unopposed MOTION for Extension of Time to file Motion for Class Certification by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Metz, Kevin) (Entered: 06/28/2019)
94 ORDER granting 93 Motion to Extend Time. Signed by Magistrate Judge Susan E. Schwab on 6/28/2019 (ktt) (Entered: 06/28/2019)
95 Unopposed MOTION to Exceed Page Limitation by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Metz, Kevin) (Entered: 08/27/2019)
96 ORDER granting 95 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Susan E. Schwab on 8/29/2019 (ktt) (Entered: 08/29/2019)
97 Joint MOTION to Seal by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Metz, Kevin) (Entered: 08/30/2019)
99 DECLARATION by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary re 98 MOTION to Certify Class . (Attachments: # 1 Declaration of K. Metz, # 2 Declaration of A. Morgan-Kurtz, # 3 Declaration of L. Niles)(Boynton, Marissa) (Entered: 08/30/2019)
101 DOCUMENT SEALED (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24) (pjr) (Entered: 09/04/2019)
102 ORDER - Upon review of the parties' joint motion to seal 97 , IT IS ORDERED that the motion is GRANTED. Signed by Magistrate Judge Susan E. Schwab on 9/4/2019 (ktt) (Entered: 09/04/2019)

09/27/2019 09/27/2019 09/27/2019 10/02/2019 10/02/2019
10/22/2019 10/23/2019 11/20/2019 11/20/2019 01/29/2020

103 NOTICE of Appearance by G. Thiel on behalf of David J. Ebbert, Mark S. Inch, The Federal Bureau of Prisons. (Thiel, G.) (Entered: 09/27/2019)
104 Unopposed MOTION for Extension of Time to File Brief in Opposition to Motion to Certify Class filed by David J. Ebbert, Mark S. Inch, The Federal Bureau of Prisons. (Attachments: # 1 Proposed Order)(Judge, Timothy) (Entered: 09/27/2019)
105 Unopposed MOTION for Extension of Time to Complete Discovery (Fact Discovery) by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Metz, Kevin) (Entered: 09/27/2019)
106 ORDER granting 104 Motion for Extension of Time to File. Signed by Magistrate Judge Susan E. Schwab on 10/2/2019 (ktt) (Entered: 10/02/2019)
107 AMENDED CASE MANAGEMENT ORDER - 105 Unopposed MOTION for Extension of Time to Complete Discovery is GRANTED. Close of Fact Discovery due by 4/28/2020. Plaintiff Expert Report is due by 5/28/2020. Defendant Expert Report is due by 7/13/2020. Expert Discovery Deadline is due by 9/14/2020. Dispositive Motions due by 10/14/2020. Telephonic Status Conference set for 4/2/2020 at 10:00 AM before Magistrate Judge Susan E. Schwab. Signed by Magistrate Judge Susan E. Schwab on 10/2/2019. (ktt) (Entered: 10/02/2019)
108 Unopposed MOTION to Exceed Page Limitation by David J. Ebbert, Mark S. Inch, The Federal Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Judge, Timothy) (Entered: 10/22/2019)
110 ORDER granting 108 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Susan E. Schwab on 10/23/2019 (ktt) (Entered: 10/23/2019)
VERBAL ORDER by Chief Judge Christopher C. Conner - Case Reassigned to Honorable Jennifer P. Wilson. Honorable Yvette Kane no longer assigned to the case. (jw) (Entered: 11/20/2019)
111 Reply in Support of Plaintiffs' Motion for Class Certification by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. . (Metz, Kevin) (Entered: 11/20/2019)
112 ORDER directing pltfs to, by 2/21/2020, show cause, if there is any, why the named pltfs' individual claims should not be

01/29/2020
02/07/2020 02/10/2020 02/10/2020 02/11/2020 02/11/2020 03/13/2020 03/25/2020 03/26/2020

dismissed as MOOT. (See order for complete details.)Signed by Magistrate Judge Susan E. Schwab on 1/29/20. (ki) (Entered: 01/29/2020)
113 REPORT AND RECOMMENDATIONS, recommending that court deny pltfs' motion for class cerification 98 . Objections to R&R due by 2/12/2020. (See R&R for complete details.)Signed by Magistrate Judge Susan E. Schwab on 1/29/20. (ki) (Entered: 01/29/2020)
114 NOTICE of Appearance by Amy B. Ernst on behalf of All Plaintiffs (Ernst, Amy) (Entered: 02/07/2020)
115 Unopposed MOTION for Extension of Time to Respond to Order to Show Cause by Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Metz, Kevin) (Entered: 02/10/2020)
116 Joint MOTION for Extension of Time to Respond to Report and Recommendation by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Metz, Kevin) (Entered: 02/10/2020)
117 ORDER granting 115 Motion to Extend Time. Plaintiffs shall file their response to the Order to Show Cause by April 8, 2020. Signed by Honorable Jennifer P. Wilson on 2/11/2020 (ve) (Entered: 02/11/2020)
118 ORDER granting 116 Motion to Extend Time. Plaintiffs and Defendants shall file their respective responses to the Report and Recommendation by April 8, 2020. Signed by Honorable Jennifer P. Wilson on 2/11/2020 (ve) (Entered: 02/11/2020)
119 ORDER CANCELING 4/2/20 telephonic status call before Chief Magistrate Judge Schwab in amended CMO 107 . (See order for complete details.) Signed by Magistrate Judge Susan E. Schwab on 3/13/20. (ki) (Entered: 03/13/2020)
120 Unopposed MOTION for Extension of Time to Respond to Order to Show Cause by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary.(Boynton, Marissa) (Entered: 03/25/2020)
121 ORDER granting 120 Motion to Extend Time. Plaintiffs shall file their response to the Order to Show Cause thirty (30) days following the date on which the Court rules on the Report and Recommendation on Plaintiffs Motion for Class Certification.

04/08/2020 04/08/2020 04/08/2020
04/22/2020
04/22/2020 04/27/2020 04/28/2020 04/29/2020 04/29/2020

Signed by Honorable Jennifer P. Wilson on 3/26/2020 (ve) (Entered: 03/26/2020)
122 SEALED DOCUMENT - Defendants' objections in part to 113 Report and Recommendation. (lg) (Entered: 04/08/2020)
123 SEALED DOCUMENT - Defendants' brief in support of 122 objections to Report and Recommendation. (Attachment: # 1 Exhibit(s)) (lg) (Attachment 1 replaced on 4/8/2020) (lg). (Entered: 04/08/2020)
124 OBJECTION to 113 Report and Recommendations by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Proposed Order)(Metz, Kevin) (Entered: 04/08/2020)
125 MEMORANDUM OF LAW by David J. Ebbert, Mark S. Inch, The Federal Bureau of Prisons re 124 Objection to Report and Recommendations "BRIEF IN OPPOSITION OF PLAINTIFFS OBJECTIONS TO THE COURTS JANUARY 29, 2020 REPORT AND RECOMMENDATION". (Attachments: # 1 Exhibit(s))(Judge, Timothy) (Entered: 04/22/2020)
126 RESPONSE by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary to 124 Objection to Report and Recommendations . (Metz, Kevin) (Entered: 04/22/2020)
127 Joint MOTION to Stay Scheduled Case Deadlines by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Boynton, Marissa) (Entered: 04/27/2020)
128 ORDER granting 127 Motion to Stay Scheduled Case Deadlines. Signed by Honorable Jennifer P. Wilson on 4/28/2020 (ve) (Entered: 04/28/2020)
129 REPLY by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. to 125 Memorandum of Law, . (Metz, Kevin) (Entered: 04/29/2020)
130 MEMORANDUM OF LAW by David J. Ebbert, Mark S. Inch, The Federal Bureau of Prisons re 122 Document Sealed Defendants' Reply Brief in Support of Their Objections in Part to the Report and Recommendation Dated January 29, 2020. (Attachments: # 1 Unpublished Opinion(s))(Judge, Timothy) (Entered: 04/29/2020)

06/16/2020

131 MOTION to Withdraw as Attorney Lyndsay A. Niles by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary.(Niles, Lyndsay) (Entered: 06/16/2020)

06/17/2020

132 ORDER granting 131 Motion to Withdraw as Attorney. Attorney Lyndsay A. Niles terminated. Signed by Honorable Jennifer P. Wilson on 6/17/2020 (ve) (Entered: 06/17/2020)

02/11/2021

133 First MOTION to Withdraw Amy Ernst as Counsel by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Attachments: # 1 Proposed Order)(Ernst, Amy) (Entered: 02/11/2021)

02/16/2021

134 ORDER granting 133 Motion to Withdraw. Signed by Honorable Jennifer P. Wilson on 2/16/2021 (ve) (Entered: 02/16/2021)

02/24/2021 135

MEMORANDUM (Order to follow as separate docket entry) re 113 Report and Recommendation. Signed by Honorable Jennifer P. Wilson on 2/24/2021. (ve) (Entered: 02/24/2021)

02/24/2021

136 ORDER (Memorandum filed previously as a separate entry) - IT IS ORDERED AS FOLLOWS: 1. The court DECLINES TO ADOPT the section of the report and recommendation that recommends that Plaintiffs motion be denied for a lack of numerosity. (Doc. 113.) The remaining portions of the report and recommendation are ADOPTED in full. (Id.) 2. This case shall be RECOMMITTED to Magistrate Judge Schwab for additional findings. SEE ORDER FOR FURTHER DETAILS. Signed by Honorable Jennifer P. Wilson on 2/24/2021 (ve) (Entered: 02/24/2021)

03/04/2021

137 ORDER - The parties shall submit supplemental briefing on the following schedule in order to address the issues raised in Judge

Wilson's memorandum & order 135 136 : Plaintiffs' brief due by 3/26/21,Defendants' responsive brief due by 4/9/21 & Plaintiffs' reply due by 4/23/21; Once supplemental briefing is complete, we will address the motion for class certification in due course. (See order for complete details.) Signed by Magistrate Judge Susan E. Schwab on 3/4/21. (ki) (Entered: 03/04/2021)

03/23/2021

138 STIPULATION of Dismissal by Richard C. Anamanya, Joseph R. Coppola, Jusamuel Rodriguez McCreary. (Metz, Kevin) (Entered: 03/23/2021)

03/24/2021

DOCKET ANNOTATION: Civil Case Terminated Upon Stipulation of Dismissal 138 . (ki) (Entered: 03/24/2021)

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 Case 1:17-cv-01011-YK-SES Document 1 Filed 06/09/17 Page 1 of 57

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JUSAMUEL RODRIGUEZ MCCREARY, RICHARD C. ANAMANYA, and JOSEPH R. COPPOLA,
each individually and on behalf of all others similarly situated,
PLAINTIFFS,
v.

CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

THE FEDERAL BUREAU OF PRISONS, THOMAS R. KANE, DAVID J. EBBERT,
DEFENDANTS.
COMPLAINT Plaintiffs Jusamuel Rodriguez McCreary, Richard C. Anamanya, and Joseph R. Coppola, each individually and on behalf of all others similarly situated, respectfully complain as follows against Defendants the Federal Bureau of Prisons (“BOP”), Thomas R. Kane, and David J. Ebbert.
INTRODUCTION 1. This class action lawsuit concerns the inadequate and unconstitutional treatment of prisoners within the Special Management Unit (“SMU”) at the United

1

Case 1:17-cv-01011-YK-SES Document 1 Filed 06/09/17 Page 2 of 57
States Penitentiary at Lewisburg (“USP Lewisburg”) who suffer from mental illness. 2. The BOP houses men in the SMU at USP Lewisburg in tiny cells, frequently with another individual, for at least 23 hours a day. International standards describe holding anyone in such conditions for more than two weeks as torture. Knowing that men are held in these conditions for years at a time, the BOP sends men with diagnosed mental illnesses to live in these conditions without adequate mental health treatment. This lawsuit seeks to recognize that it is unconstitutional to hold men with mental illness is these conditions. Plaintiffs seek declaratory and injunctive relief requiring the BOP to comply with its policies regarding the treatment of individuals with mental illness and to provide mental health diagnoses and treatment consistent with the requirements of the Eighth Amendment for individuals who have been committed to its custody. 3. USP Lewisburg was built in 1932 and is a high security United States penitentiary located in Lewisburg, Pennsylvania. It currently houses approximately 1,089 men, 437 of whom are held in a low security camp. The remaining 652 men are held in a high security facility, most of them in the SMU. A small number of individuals are held in a general population (non-SMU) unit in the high security facility at Lewisburg. In 2009 the BOP transformed USP Lewisburg from a regular penitentiary to an SMU for the purpose of housing men
2

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with unique security and management concerns. Conditions of confinement in the SMU are more restrictive than in a general population environment. Men spend as at least 23 hours per day in cells that are on average eight by eleven feet in size. 4. Men who have been diagnosed with mental illness as well as with serious mental illness1—including schizophrenia, bipolar disorder, and major depression— are confined in these conditions, often sharing a cell with another man with mental illness. 5. The Eighth Amendment to the United States Constitution and BOP policies require the provision of mental health treatment to those in the SMU at USP Lewisburg who are suffering from mental illness. 6. Specifically, formal BOP policies suggest a commitment to ensuring that “inmates with mental illness are identified and receive treatment to assist their progress toward recovery, while reducing or eliminating the frequency and severity of symptoms and associated negative outcomes of mental illness.”2 7. The policies also demonstrate the BOP’s recognition that extended confinement in isolation combined with harsh disciplinary practices (such as placement in four-points restraints) pose a substantial risk to individuals’ mental
1 As defined infra at 51. 2 BOP Program Statement 5310.16 on the Treatment and Care of Inmates with Mental Illness (May 1, 2014).
3

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health, especially for the men who had mental health problems before being confined in such conditions. 8. Lastly, the BOP’s policies state that SMU men may be transferred out of the SMU program if it becomes clear that their mental health status does not reasonably allow them to complete the SMU program. 9. Despite these policies, the BOP houses dozens of men with serious mental illness in the SMU at USP Lewisburg and fails to provide adequate mental health care to individuals with mental illness, even denying individuals who have been diagnosed with mental illness by the BOP the treatment they require. Together, the conditions of confinement at USP Lewisburg and the BOP’s failure to properly diagnose and treat mental illness, have worsened the mental health status of men who arrive at USP Lewisburg with mental illness, and have caused other individuals to develop mental illness while at the facility. 10. The less-than-constitutionally-adequate care provided for people with mental illness at USP Lewisburg consists of prison staff passing out coloring books and puzzles and calling it “treatment.” Most men never receive actual one-on-one counseling. The supposed “counseling” they do receive is during psychology rounds and includes brief discussions with a psychology staff member through the cell doors. Such conversations can be easily overheard by other men and are of are of limited utility as many do not wish to publicly air their mental health issues.
4

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The psychology staff rarely do more than ask the men a very limited number of questions about their day. If the men make any sort of response, they are considered mentally sound. Psychology staff also make “observations” through the cell walls, and unless they observe extreme behavior, they make notes that the men have no mental health symptoms. Prisoners’ requests for one-on-one counseling and to see a psychiatrist are routinely ignored or denied. 11. Men who arrive at USP Lewisburg already on medications for mental illness have had those treatments discontinued, sometimes as punishment. Such treatment cut-offs can result in even more debilitating conditions and frequently lead to disciplinary issues for the men who need their prescribed medication to control their behavior. 12. The impact of these conditions and the inadequate care is readily apparent at Lewisburg: men bang on the walls of their cells; they refuse to leave their cells for months, even for a shower; some men mutilate their bodies with whatever objects they can obtain; others carry on delusional conversations with voices they hear in their heads, oblivious to reality and to the danger that such behavior poses to themselves and to others; suicide attempts are common, and some attempts have been successful. Inmate-on-inmate violence is not uncommon and has been fatal in some instances.
5

Case 1:17-cv-01011-YK-SES Document 1 Filed 06/09/17 Page 6 of 57
13. Defendants’ constitutional violations have repercussions beyond the harm caused to Plaintiffs and the class. Many USP Lewisburg prisoners who suffer from untreated or poorly treated mental illnesses pose a constant threat to BOP personnel. The extreme isolation and the lack of adequate mental health treatment only serve to increase the risk of assaults on prison staff. 14. Although some men at USP Lewisburg will never be released from prison, many of them, including Plaintiffs, will eventually be released into the community when their sentences expire. After years of confinement in isolation without proper treatment for mental illness, it will be extremely difficult for these men to safely and successfully reenter society. 15. This lawsuit seeks to remedy the unconstitutional mental health system at USP Lewisburg by means of a permanent injunction, consistent with the requirements of the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, requiring the BOP to honor its own policies and the constitutional rights of individuals incarcerated at USP Lewisburg by removing those with serious mental illness from the SMU, preventing individuals with serious mental illness from being transferred to the SMU, and providing adequate mental health treatment for those men with mental illness who remain at USP Lewisburg.
6

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JURISDICTION 16. This Court has subject matter jurisdiction over the allegations presented herein pursuant to 28 U.S.C. § 1331, in that the claim for injunctive relief arise under the United States Constitution and federal statutes, including 5 U.S.C. § 702 which waives sovereign immunity for an action seeking relief other than monetary damages against an agency. The request for declaratory relief is based upon 28 U.S.C. § 2201, in that an actual controversy exists between Defendants and each Plaintiff over the denial of services that are guaranteed by the United States Constitution.
VENUE 17. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), because a substantial part of the acts or omissions that give rise to Plaintiffs’ claim occurred or will occur in Union County, Pennsylvania, in the Middle District of Pennsylvania.
PARTIES 18. Named Plaintiffs Jusamuel Rodriguez McCreary, Richard C. Anamanya, and Joseph R. Coppola are currently housed at USP Lewisburg in the SMU. Each named Plaintiff has been diagnosed with a serious mental illness, including bipolar disorder, major depression, and schizophrenia. The care that each Plaintiff is receiving at USP Lewisburg for his mental illness is constitutionally deficient and
7

Case 1:17-cv-01011-YK-SES Document 1 Filed 06/09/17 Page 8 of 57
otherwise fails to satisfy Defendants’ legal obligations to Plaintiffs. Specific facts relating to each Plaintiff are set forth below. 19. Defendant BOP is a federal law enforcement agency subdivision of the United States Department of Justice (“DOJ”), and is responsible for the administration of federal prisons, including USP Lewisburg. The BOP maintains physical custody of Plaintiffs and class members. The BOP is charged with establishing policies and regulations that are safe, humane, and secure for all federal penitentiaries and other prison facilities. 20. Defendant Thomas R. Kane is the Director of the BOP. He is sued herein in his official capacity. 21. Defendant David J. Ebbert is the current warden at USP Lewisburg. He is sued herein in his official capacity.
GENERAL ALLEGATIONS Background and Operation of the USP Lewisburg
Special Management Unit 22. The BOP created the SMU program to house men determined to have unique security and management concerns. Conditions of confinement for men in the SMU are more restrictive than for those in a general population environment in a high security penitentiary. 23. The BOP established the SMU program on November 19, 2008, when it published Program Statement 5217.01. In 2009, the BOP transformed USP
8

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Lewisburg from a regular penitentiary to an SMU. On August 9, 2016, the BOP published a new SMU policy, Program Statement 5712.02, which rescinded Program Statement 5712.01. 24. According to the BOP policies, the SMU is a multi-level program whose mission is to teach self-discipline, pro-social values, and the ability to coexist with members of other cultural, geographical, and religious backgrounds. SMU designation is supposed to be non-punitive. The BOP can send any individual to the SMU that it has determined requires “greater management” and meets certain other criteria specified by the BOP. 25. Specifically, any sentenced prisoner whose interaction with others requires greater management than for those in a general population environment may be designated to an SMU to ensure the safety, security, or orderly operation of BOP facilities, or the protection of the public, if the prisoner meets any of the following criteria:
a. The prisoner participated in or had a leadership role in disruptive geographical group- or gang-related activity;
b. The prisoner has a history of serious or disruptive disciplinary infractions;
c. The prisoner committed any “100-level” prohibited act, according to 28 C.F.R. pt. 541, after being classified as a member of a “Disruptive Group” pursuant to 28 C.F.R. pt. 524;
d. The prisoner participated in, organized, or facilitated any group misconduct that adversely affected the orderly operation of a correctional facility; and/or
9

Case 1:17-cv-01011-YK-SES Document 1 Filed 06/09/17 Page 10 of 57
e. The prisoner participated in or was associated with activity such that greater management of the inmate’s interaction with other persons is necessary to ensure the safety, security, or orderly operation of BOP facilities or protection of the public.
26. The SMU program has different levels that the men progress through until, ideally, they graduate from the program and can be moved to a general population or placed in another appropriate facility. 27. In the SMU’s original formulation, there were four levels and men were expected to take 18-24 months to complete the full program. With the August 9, 2016 Program Statement 5712.02, the BOP shortened the length of the SMU program from four levels to three and specified a 12-month timeframe for completion.3 28. Each of the levels also has an expected timeframe for completion: under Program Statement 5712.02, this is 6-8 months for Level 1, 2-3 months for Level 2, and 1-2 months for Level 3. However, men can remain at any given level for significantly longer than the expected completion time if the BOP finds that they are not ready to progress to the next level. 29. Additionally, men who receive disciplinary violations can be sent back to Level 1 where they must begin the program over again. Under Program Statement
3 An August 17, 2016 memo from Lewisburg Warden David J. Ebbert clarified that men who had been in the SMU at USP Lewisburg for more than 24 months would not automatically be eligible for transfer and would be assessed on an individual basis.
10

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5712.02, men can be cycled through the program for up to 24 months before being designated as “SMU FAIL” status. 30. Under Program Statement 5712.01 there was no outer limit on the length of time men could remain in the SMU. As a result, some men currently housed in the SMU have been there since the program’s inception. 31. The three levels also afford the men different privileges. For the vast majority of the men in the SMU, their conditions of confinement are extremely restrictive. Men at Levels 1 and 2 remain in their cells for 23 hours a day. Although the men are supposed to receive some access to telephones, all of the named plaintiffs have had their telephone privileges rescinded for years due to alleged disciplinary violations. Many men report never receiving any telephone phone privileges and are cut off indefinitely from contact with family and friends. 32. At each of the levels, the men must meet different milestones for progression. An individual’s progression through Level 1 is based upon his compliance with behavioral expectations. Progression through Level 2 is based on the individual demonstrating potential for positive “community” interaction. Progression though Level 3 is based upon the individual’s ability to demonstrate positive “community” interaction skills. Individuals suffering from serious mental illness who are not properly treated find it very challenging, if not impossible, to
11

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meet these milestones, and find themselves being cycled through the SMU program multiple times and frequently ending as “SMU FAIL.” 33. All of the men in the SMU are allowed only a maximum of 5 hours of recreation per week, and frequently get less or none. The recreation time is spent in cages that are approximately eight feet by twenty feet. Sometimes men are alone in the cage for recreation and other times there are as many as six individuals in one cage. Because individuals cannot choose whom they are placed in the cage with, they are frequently in fear of others and many refuse recreation time for this reason. 34. Program Statement 5712.01 mentioned mental health care just once, establishing the requirement that mental health staff evaluate men in the SMU every 30 days. 35. According to Program Statement 5712.01, men were also supposed to receive a review of the their participation in and progression through the SMU program (“SMU Review”) within 28 days of their arrival at an SMU facility, and every 90 days thereafter through the third level of the program. Men in the fourth level were slated to receive an SMU Reviews every 30 days. The SMU Reviews are not mental health reviews. 36. Program Statement 5712.02 preserved the requirement for mental health evaluations every 30 days and included a note that men requiring routine or follow-
12

Case 1:17-cv-01011-YK-SES Document 1 Filed 06/09/17 Page 13 of 57
up mental health services will receive them in accordance with other relevant BOP statements on mental health treatment (as described in paragraphs 67-74). 37. In practice, most men in the SMU program never receive any mental health evaluations, let alone necessary follow-up mental health services.
Extended Confinement in Isolation Can Have a Devastating Effect on Individuals’ Mental Health
38. Solitary confinement, known by many names, refers to the practice of holding an incarcerated person in a cell, alone or with a cellmate, between 22 and 24 hours per day, isolated from normal social interaction with others and subjected to severe restrictions impacting every aspect of their lives. 39. The serious detrimental effects of long-term solitary confinement, especially for people with mental health problems, has been known by the BOP and mental health experts for decades. As early as the 1960s, electroencephalography (“EEG”) examinations demonstrated the slowing of brain waves of people confined in isolation for longer than a week.4 40. A landmark study in the 1970s showed that subjects in solitary confinement often experienced impaired functioning of the brain waves associated with the ability to control emotions and key cognitive functions, and that after only a week
4 Scott, G. D., & Gendreau, P. (1969). Psychiatric implications of sensory deprivation in a maximum security prison. Canadian Psychiatric Association Journal, 14, 337-341, https://www.ncbi.nlm.nih.gov/pubmed/5811243.
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of solitary confinement, people showed decreased EEG activity, indicative of increased stress, anxiety, and depression.5 41. As recently observed by the Chief Judge of the United States District Court for the Middle District of Pennsylvania, “Researchers have observed that
‘psychological stressors such as isolation can be as clinically distressing as physical torture.’”6 42. Expert, legal, and human rights organizations have recommended that because of the increased risk of serious harm to which individuals in solitary confinement are exposed, men suffering from mental illness should not be subjected to any form of prolonged placement in segregation.
43. In its 2016 “Report and Recommendations Concerning the Use of Restrictive Housing,” the Department of Justice (“DOJ”) indicated that “inmates with serious mental illness (“SMI”) should not be placed in restrictive housing.” In the report, DOJ used the term “restrictive housing” to refer to solitary confinement. DOJ further recommended that all inmates placed in restrictive
5 Gendreau, P., Freedman, N. L., Wilde, G. J. S., & Scott, G. D. (1972). Changes in EEG alpha frequency and evoked response latency during solitary confinement. Journal of Abnormal Psychology, 79, 54-59, https://www.unboundmedicine.com/medline/citation/5060981/Changes_in_EEG_a lpha_frequency_and_evoked_response_latency_during_solitary_confinement_. 6 Johnson v. Wetzel, 209 F. Supp. 3d, 766, 779 (M.D. Pa. 2016) (quoting Jeffrey L. Metzner, M.D., et al., Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. AM. ACAD. Psychiatry & Law 104, 104 (2010)).
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housing should be screened for signs of mental illness and that prisons implement policies and systems to conduct repeated and varied reviews—including multiple times per day—to determine whether inmates in solitary confinement are showing signs of mental illness. 44. The American Psychiatric Association has recommended that “prolonged segregation” of individuals with serious mental illness “with rare exceptions, should be avoided due to the potential for harm to such inmates.”7 45. The United Nations has long recognized solitary confinement as “torture or other cruel, inhuman or degrading treatment or punishment,” most recently in the 2015 Mandela Rules. Additionally, the World Health Organization identifies numerous and severe symptoms that result from even a brief period of solitary confinement. 46. The BOP has known since at least 1999 that extended periods of confinement in isolation can be psychologically damaging to any prisoner and can be particularly harmful to individuals with pre-existing mental illness. Specifically, a 1999 study conducted under the auspices of the DOJ and the National Institute of Corrections concluded:
7 American Psychiatric Association, Position Statement on Segregation of Prisoners with Mental Illness (2012), http://www.psych.org/File%20Library/Learn/Archives/ps2012 _PrisonerSegregation.pdf.
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Insofar as possible, mentally ill inmates should be excluded from extended control facilities. Each inmate being considered for such a facility should have a mental health evaluation. Although some mentally ill offenders are assaultive and require control measures, much of the regime common to extended control facilities may be unnecessary, and even counterproductive, for this population.8 47. In May 2013, the United States Government Accountability Office (“GAO”)
issued a detailed report entitled “Bureau of Prisons: Improvements Needed in Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated Housing.”9
That report includes many troubling findings concerning the BOP’s operation of
segregated housing including at USP Lewisburg. For example, GAO found a lack
of documentation demonstrating that men received protections relating to
conditions of confinement, such as receipt of meals and exercise as required. GAO
also noted that the BOP has not assessed the extent to which segregated housing
programs impact safety for incarcerated men and staff, or their long-term mental
health.
48. Additionally, GAO found:
While most BOP officials told us there was little or no clear evidence of mental health impacts from long-term segregation, BOP’s Psychology Services Manual explicitly acknowledges the potential mental health risks of inmates placed in long-term segregation. Specifically,
8 https://s3.amazonaws.com/static.nicic.gov/Library/014937.pdf. 9 http://www.gao.gov/assets/660/654349.pdf.
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it states that BOP “recognizes that extended periods of confinement in Administrative Detention or Disciplinary Segregation Status may have an adverse effect on the overall mental status of some individuals.
49. Following a June 2012 oversight hearing in the United States Senate about
the impacts of solitary confinement, including double-cell solitary, on individuals’
mental health, during which the Director of the BOP admitted that the BOP had
never evaluated the impact of solitary confinement, the BOP commissioned an
independent study on that and other issues. The study culminated with a 242 page
report issued in December 2014.10 Among many other BOP failings, that report
detailed the following mismanagement of mental illness in restrictive housing
facilities, including USP Lewisburg:
a. A large number of men in restrictive housing are receiving insufficient or inappropriate mental health treatment;
b. A large number of men in restrictive housing should not be assigned to such a facility due to their mental health conditions;
c. No protocol exists to identify men with mental illness who should be kept out of restrictive housing;
d. Individuals often receive a mental health diagnosis by medical students or interns who are not trained in psychiatry, and once diagnosed, they rarely receive follow-up reassessments or proper medication;
e. No reentry programs or means of tracking for individuals coming out of segregation exist.
Despite these findings, commissioned by the BOP, the deficiencies at USP
Lewisburg continue unabated.
10 https://www.bop.gov/resources/news/pdfs/CNASHUReportFinal_123014_2.pdf.
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50. Current BOP policies acknowledge the substantial risk to individuals’ mental health posed by extended confinement in isolation combined with these harsh disciplinary practices such as four pointing, especially for the men who had mental health problems before being confined in such conditions. For example, the Treatment and Care of Inmates with Mental Illness Program Statement states: “The Bureau recognizes that an inmate’s mental health may deteriorate during a restrictive housing placement.” 51. Up until recently, most men in the SMU at USP Lewisburg were held in double-cell solitary conditions due to overcrowding, meaning they shared the eight by eleven foot cell with another man. Some of the cells are so small that if one man stands up, the other must sit on the bed. 52. Evidence suggests that double-cell solitary confinement as practiced at USP Lewisburg can be even worse than traditional single-cell solitary for mentally ill individuals. The frustration and anger that men experience from being placed in restrictive housing conditions is intensified by having to deal with another person’s idiosyncrasies. Confining two men in solitary conditions, especially if one or both is mentally ill, creates a powder keg environment waiting to explode: cells are more cramped, each man’s movements are more restricted, and there is an acute fear of the stranger in the cell. These crowded conditions in already difficult environments can deepen the paranoia and rage these men experience just by being
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locked up. The conditions can also worsen existing mental illnesses, forcing men who are locked together into a race to the bottom.11 53. Men held in double-cell solitary conditions are stuck with the worst of both worlds. Most of the men in the SMU as USP Lewisburg are locked in isolation for at least 23 hours per day, denying them human interaction and programming offered to others housed in a general population environment in a high security penitentiary while at the same time forcing them to share a space never intended to house two people. 54. Double-cell solitary is particularly dangerous at the time when one man is being returned to his shared cell. During those moments, one cellmate is cuffed while the other is not, providing the free-handed man an easy opportunity to take out his rage on his defenseless cellmate. In 2010, two men at USP Lewisburg were killed in this exact situation, their hands in cuffs and their murderers unhinged.12 55. The BOP has witnessed the devastating consequences of double-cell confinement at USP Lewisburg. Since 2010, at least four men at USP Lewisburg
11 https://www.washingtonpost.com/opinions/barack-obama-why-we-must-rethinksolitary-confinement/2016/01/25/29a361f2-c384-11e5-89650607e0e265ce_story.html?utm_term=.d53f021e275e. 12 http://www.dailyitem.com/news/group-per-cell-foments-prison-sviolence/article_e10b01bf-b8ae-5d18-b536-292caaeac68c.html.
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have been killed by their cell mate. As one inmate described it “A single cell would be cheaper than what they’ve spent in hospital bills and funerals.”13 56. Despite the foregoing and substantial anecdotal and empirical data confirming the detrimental impact on mental health of extended isolated confinement, the BOP still assigns men to USP Lewisburg who have mental illness, including men with serious mental illness, and denies them even minimally appropriate mental health care.
The BOP Violates the Constitution and Fails to Adhere to Its Own Policies Regarding the Evaluation and Treatment of the Mentally Ill
Inadequate Screening for Mental Illness 57. The BOP’s written procedures for transferring individuals to SMUs, including USP Lewisburg, state that “inmates referred for extended placement in restrictive housing (i.e., SMU) must be reviewed by Psychology Services staff to determine if mental health issues exist that preclude placement in this setting.”14 58. BOP policies also require intake screening for all men entering a BOP institution. With regard to this general initial and transfer intake screening, BOP policy requires a Health Services screening within 24 hours of arrival at a facility. BOP instructs Health Services staff to “interview[] and observe [prisoners] for
13 Id. 14 BOP Program Statement 5310.16, “Treatment and Care of Inmates with Mental Illness,” p. 16.
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indicators of mental illness.” If staff members observe any mental health concerns, they must refer the person to Psychology Services for prompt evaluation by a psychologist.15 59. For men assigned to restrictive housing, BOP policy mandates an “initial psychological review … on or before the 30th calendar day of consecutive confinement in restrictive housing.”16 60. Despite these policies, the BOP routinely places men suffering from serious mental illness in the SMU at USP Lewisburg, ignoring previous diagnoses of serious mental illness and failing to conduct the required psychological screenings. 61. Incoming prisoners do not receive the psychological evaluations required by the policies. Instead, upon arrival to USP Lewisburg, the men receive a brief intake evaluation, lasting approximately ten minutes, with a member of USP Lewisburg’s general medical staff who does not specialize in psychology or psychiatry and who does not administer an evaluation that conforms with contemporary community standards used by mental health professionals to evaluate and diagnose patients with mental illnesses. These perfunctory interviews are wholly inadequate as a form of diagnosis of mental illness or screening for suitability for confinement at an SMU facility.
15 BOP Program Statement P5310.17 (Aug. 25, 2016), “Psychology Services Manual,” p. 14. 16 Id. at 17.
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Insufficient Mental Health Staffing at USP Lewisburg 62. According to BOP policies, all BOP institutions, regardless of custody level, are expected to provide services for men with mental illness, and Psychology Services and Health Services departments are supposed to ensure every individual with a clinically identified need for psychological treatment has access to mental health care. 63. The mental health staffing at USP Lewisburg is not adequate to meet the expectations set forth in the BOP policies. At the time this action was filed, there were only five (or fewer) psychologists on staff as USP Lewisburg, and they were responsible for the mental health of all of the approximately 1089 men at USP Lewisburg. Men experiencing mental health emergencies (e.g., suicidal thoughts, psychosis) are directed to inform any USP Lewisburg staff member that they need to speak with psychology staff. However, the men report rarely, if ever, having the opportunity to speak in private with a staff psychologist. 64. For non-emergencies, the men are directed to speak with a psychologist during daily medical rounds or to send the unit psychologist a cop-out (a prisoner request to staff member). 65. There is no psychiatrist on staff at USP Lewisburg. In the event of complex mental health and psychiatric medication needs, USP Lewisburg is supposed to rely on the “Tele-health program” (also commonly called “tele-psych”)—which
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utilizes an audiovisual interface to connect men at USP Lewisburg with a consulting psychiatrist located at the United States Medical Center for Federal Prisoners (“USMCFP”) in Springfield, Missouri. However, Plaintiffs report never being offered the opportunity to speak with a psychiatrist via the tele-pysch. 66. Many men at USP Lewisburg have chronic mental illnesses, and many others experience periodic acute mental health crises, and a substantial number require psychotropic medication. These men require significant psychiatric care which they are not receiving because there is no psychiatrist staffed at USP Lewisburg and little to no use of the tele-psych program. Lack of Adequate Mental Health Treatment 67. On paper, the BOP’s policies show a commitment to adequate mental health treatment. In its January 15, 2005 Program Statement P6340.04 on Psychiatric Services (“Psychiatric Services Program Statement”), the BOP outlined its commitment and approach to providing “essential, cost-effective, high-quality, and humane diagnostic and treatment services throughout … inmates’ incarceration.” 68. Similarly, the stated purpose of the BOP’s May 1, 2014 Program Statement 5310.16 on the Treatment and Care of Inmates with Mental Illness (“Mental Illness Program Statement”) is “to ensure that inmates with mental illness are identified and receive treatment to assist their progress toward recovery, while reducing or
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eliminating the frequency and severity of symptoms and associated negative outcomes of mental illness.” 69. The BOP’s Mental Illness Program Statement details the mental health care levels recognized by the BOP: (1) CARE1-MH-no significant mental health care; (2) CARE2-MH-routine outpatient mental health care or crisis-oriented mental health care; (3) CARE3-MH-enhanced outpatient mental health care or residential mental health care; and (4) CARE4-MH-inpatient psychiatric care. Care levels two through four evidence the BOP’s acknowledgement of the need for outpatient, residential, and inpatient psychiatric care tailored to the needs of individual men. 70. For care levels two through four, the Mental Illness Program Statement requires the BOP to offer “collaborative, individualized treatment plan[s]” for men, as well as “[e]vidence-based psychosocial interventions,” none of which occurs at USP Lewisburg. 71. For men with mental illness in restrictive housing such as the SMU program, the BOP’s Mental Illness Program Statement requires “at a minimum, face-to-face mental health contacts consistent with the type and frequency indicated by the [individual’s] care level, to the extent feasible. These contacts take place in a manner that protects an inmate’s privacy…[,]” including removal of SMU men from their cells for private or extended interviews. Private face-to-face mental health contacts do not occur at USP Lewisburg.
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72. The BOP also requires psychology staff to review the psychological status of SMU men every thirty days, as detailed in its August 25, 2016 BOP Program Statement P5310.17 Psychology Services Manual. These reviews must contain clinically relevant observations and findings relating to mental health for men assigned care level CARE2-MH or above. Men at USP Lewisburg report that these reviews do not occur. 73. All institutions are required to provide psychiatry services, which the BOP details in its Psychiatric Services Program Statement. These required services include “[r]isk assessment for acts of self-harm or harm towards others”; “[m]ental health screening of inmates suffering from symptoms or behavioral disturbances indicative of possible mental illnesses or disorders”; “[d]iagnosis and treatment of mild to moderate mental illnesses such as non-psychotic major depression, anxiety disorders, or sleep disorders”; “[c]ontinuation of psychiatric treatment initiated at other institutions or prior to incarceration”; and “[m]onitoring of inmates on psychiatric medications for side-effects and drug interactions” among other services. 74. SMU Program Statement 5712.02 includes additional mention of treatment of mental illness that was not in the original SMU Program Statement 5712.01, including stating that “mental health care is always available either at the institution or from the community. In addition, men with an identified need for
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routine and/or follow-up mental health services will receive these services in accordance with the Program Statements.” 75. However, despite these seemingly expansive policies concerning the development of treatment plans and delivery of mental health services, the BOP has failed to develop meaningful treatment plans for prisoners at USP Lewisburg who have chronic and obvious mental illness, and has failed to establish a reliable mechanism for delivering elementary mental health services, such as access to psychiatry services, mental health medication, timely access to crisis counseling, and counseling in both individual and group settings that is delivered in a consistent fashion. 76. For the first few years that USP Lewisburg operated as a SMU, men were prescribed mental health medication and some individuals were given access to the tele-psych. These practices stopped in approximately 2013 or 2014 without explanation, and the problems described above regarding inadequate mental health treatment have continued including after the implementation of the August 2016 SMU Policy Statement. 77. USP Lewisburg staff routinely ignore BOP policies in classifying the mental health care levels of men in the SMU. For example, men who have been on suicide watch multiple times are classified at CARE1-MH. These CARE classifications have a significant impact on the mental health services men receive.
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78. Men designated at CARE1-MH are never removed from their cells for private counseling sessions. Instead, the only “counseling” sessions are conducted by Psychology Staff, through the cell door, in the immediate presence of a correctional officer and an individual’s cellmate, and within earshot of other men housed nearby. 79. The men complain that they often cannot even hear the person on the other side of the cell door due to the noise from the fans and other individuals (and in Gblock—where men with mental illness are frequently placed—there is a flap over the door which adds an additional layer of isolation). Further, few people, in or out of prison, are comfortable discussing intensely personal matters in a highly public environment that renders them subject tos ridicule, discrimination, and other violent repercussions for their attempts to get help. As a result, men at USP Lewisburg are forced by the facility’s approach to mental health “counseling” to choose between forgoing that inadequate counseling or exposing themselves to violent assault. 80. Further some men choose not to respond to questioning from USP Lewisburg staff regarding their mental health for fear that, if they do respond, Psychology staff will consider that response sufficient to conclude they have no mental health issues.
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81. Men classified as CARE2-MH are pulled from their cells for “counseling” sessions. But these are short, five to ten minute, conversations in the shower with Psychology staff that are neither meaningful nor helpful in addressing the serious mental health needs of these men. 82. Psychology staff at USP Lewisburg also deny men their previously prescribed mental health medication. Men who were previously diagnosed with mental illness by the BOP and prescribed medication at other BOP facilities are routinely taken off their medication when they arrive at USP Lewisburg. 83. Men have attempted to submit cop-outs, medical requests, and grievances to gain access to more meaningful mental health treatment but their requests are denied. 84. Instead, Psychology Services staff pass games and puzzles to men as “treatment” for serious mental illness that could be so severe as to include manic and/or depressive episodes. 85. Men suffering from mental illness at USP Lewisburg are subject to harsh disciplinary practices such as “four-pointing” for incidents resulting from their untreated illness, including attempts at suicide. Four-pointing involves chaining men by the wrists and ankles in either a prone or supine position on top of a concrete platform for several hours and often for many days. Correctional officers place men at USP Lewisburg in paper clothes before four-pointing them, no matter
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how cold the temperature in the prison. While chained, men with mental illness may be left to urinate and defecate on themselves, and sometimes are denied basic nutrition. The restraints often leave the men with nerve damage that lasts several months. The practice can heighten already severe symptoms of mental illness as men suffering from these conditions often live on the edge of their emotional endurance, and being chained in four-point restraints can further torture them. 86. In November 2015, the District of Columbia Corrections Information Council (“CIC”)17 released a report detailing the CIC’s inspection of USP Lewisburg and investigation into, among other things, mental health treatment at USP Lewisburg. The CIC found that the Psychology Services staff at USP Lewisburg was unresponsive to individuals’ “‘mental health needs.’” In the CIC’s study, numerous men reported being taken off necessary mental health medication; many others reported that their requests to be seen by Psychology Services had gone unanswered.
17 The CIC is an independent monitoring agency established by the Revitalization Act of 1997. The mission of the CIC is to inspect, monitor, and report on the conditions of confinement at facilities where D.C. residents are incarcerated, including BOP facilities. The CIC reports its findings and recommendations to several officials and governmental bodies including the Director of the BOP. The agency also releases reports on inspected facilities and issues an annual report regarding general issues affecting conditions of confinement for incarcerated DC residents.
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87. The CIC also reported that while men can submit cop-outs to request individual counseling, due to limited resources and understaffing, Psychology Services cannot accommodate all requests for confidential individual counseling sessions. This lack of adequate Psychology Services staff is particularly concerning with men in restrictive housing and isolated confinement, which is a population with increased mental health needs. Continued Housing of Mentally Ill Individuals at USP Lewisburg 88. The BOP’s August 9, 2016 Program Statement on Special Management Units states that an individual may be removed from the SMU program if it becomes clear that his mental health does not reasonably allow him to complete the program. 89. However, men with mental illness and serious mental illness held at USP Lewisburg, such as Plaintiffs and other members of the class, are sometimes confined in the SMU at USP Lewisburg for months or years without adequate mental health treatment, with predictably devastating results. These conditions exacerbate their mental illness, making them increasingly dangerous to themselves and others. 90. Many men suffering from serious mental illness are unable to complete the SMU program. However, even classification as SMU-FAIL does not guarantee men suffering from mental illness that they will be moved from the SMU at
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Lewisburg. Plaintiff Jusamuel McCreary was classified as SMU-FAIL in June of 2016 and has been designated to the STAGES program at USP Florence; however, he continues to be housed in the SMU program at USP Lewisburg.
Defendants Have Displayed Sustained Deliberate Indifference to the Plight and Needs of Prisoners with Mental Illness at USP Lewisburg 91. Defendants are, and have been for years, on actual notice of Plaintiffs’ and other class members’ unmet mental health needs at USP Lewisburg, but have demonstrated sustained and deliberate indifference to those needs. 92. Defendants’ actual knowledge of the unmet mental health needs of men at USP Lewisburg has come from a variety of sources, including medical records of Plaintiffs and other class members, direct observation of Plaintiffs and other class members with obvious mental illness, evidence provided by other men at USP Lewisburg in the course of prior litigation challenging the USP Lewisburg mental health system, and suicides and attempted suicides by men with mental illness. 93. BOP employees have witnessed clear manifestations of mental illness, including men smearing feces, repeatedly banging their heads against their cell walls, talking to themselves, and experiencing delusional episodes. 94. As discussed in detail above, multiple reports have detailed the failings of USP Lewisburg in treating mental illness, including the November 2015 CIC report, the May 2013 GAO report, and the December 2014 report commissioned by the BOP following the 2012 Congressional oversight hearing.
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95. Since 2013, there have been at least six lawsuits filed against various officials as USP Lewisburg alleging in whole or in part constitutionally inadequate treatment for mental illness.18 96. In 2013, former USP Lewisburg prisoner Scott Njos sued the BOP and staff at USP Lewisburg for Eighth Amendment violations, alleging that the defendants denied him treatment for his long-standing mental illness, including manic episodes and PTSD from prior physical and mental abuse. Upon information and belief, Njos suffers from mental illness, and the defendants denied him individual therapy sessions (the only “therapy” he received was cell-side discussions as described above) and medications prescribed by a doctor at a prior prison.19 97. Similarly, former USP Lewisburg prisoner, Joseph Mitchell filed a suit against the United States, the BOP, and various USP Lewisburg officials for failure to provide him with adequate mental health treatment. Mr. Mitchell had been diagnosed with atypical mood disorder, atypical depressive disorder, borderline personality disorder, and bipolar disorder, and had been prescribed buproprion at a prison prior to being transferred to USP Lewisburg. When he arrived at USP Lewisburg his medication was stopped. Mr. Mitchell attempted suicide more than
18 See, e.g., Thompson v. United States, No. 1:13–cv–1867 (M.D. Pa. filed July 9, 2013); Huffman v. United States, No. 3:14–cv–0595 (M.D. Pa. filed March 31, 2014); Milhouse v. Sage, No. 1:14–cv–1055 (M.D. Pa. filed June 2, 2014); Parks v. Edinger, 1:13-cv-01834 (M.D. Pa. filed July 10, 2013). 19 Njos v. Bureau of Prisons, No. 3:12–cv–1251 (M.D. Pa. filed June 29, 2012).
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once while incarcerated at USP Lewisburg.20 That case was dismissed for failure to exhaust administrative remedies but further documents the defendants’ knowledge. 98. Despite being on notice of the concerns of men suffering from mental illness as USP Lewisburg, the BOP has failed to address the problems showing a deliberate indifference to the needs of these men. ALLEGATIONS RELATING SPECIFICALLY TO NAMED PLAINTIFFS 99. The named Plaintiffs are currently incarcerated at USP Lewisburg and each has a serious mental illness. The named Plaintiffs were all incarcerated at USP Lewisburg prior to August 2016; however, they have continued to receive constitutionally inadequate mental health treatment since the implementation of Program Statement 5712.02. 100. Defendants’ failure to implement adequate programs of mental health screening and treatment has subjected them to cruel and unusual punishment, exacerbated their mental illnesses, and subjected them to harm and injury, as well as serious risk of future harm.
20 Mitchell v. Sage, No. 3:14cv905, 2014 WL 5493193 (M.D. Pa. Oct. 30, 2014) (adopting Report and Recommendation, Mitchell v. Sage, No. 3:14cv905, 2014 WL 5493193 (M.D. Pa. July 21, 2014)).
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Jusamuel Rodriguez McCreary 101. Jusamuel Rodriguez McCreary, BOP Register Number 20958-058, is currently incarcerated at USP Lewisburg. Mr. McCreary is scheduled for release on October 21, 2027. 102. Mr. McCreary suffers from serious mental illness. He has been diagnosed with bipolar disorder and schizophrenia both prior and during incarceration. The BOP has diagnosed him with depression, mood disorder, psycho-social and environmental problems, ADHD, and antisocial personality disorder. 103. Mr. McCreary grew up in Charlotte, North Carolina. As a young child, Mr. McCreary was a product of parental neglect and lacked familial support. In 1994, the Department of Social Services assumed temporal control of him and his siblings. Later, when he was about ten years old, Mr. McCreary attempted suicide by hanging in his bedroom closet. Upon information and belief, Mr. McCreary’s mother sought treatment for her son at New Hope Treatment Center in South Carolina where he was diagnosed with bipolar disorder and schizophrenia and was prescribed medication. 104. Mr. McCreary received frequent mental health treatment between the time of his initial diagnosis and his current incarceration. Upon information and belief, in or about 1999, Mr. McCreary was treated at an outpatient facility in South Carolina. Subsequently, Mr. McCreary was treated at The Pines Residential
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Treatment Center in Portsmouth, Virginia and at Cumberland Hall Psychiatric Hospital in Chattanooga, Tennessee. 105. Prior to sentencing on the charges for which Mr. McCreary is currently incarcerated, Mr. McCreary was examined by Dr. H.D. Kirkpatrick, Ph.D., ABPP. Dr. Kirkpatrick determined that Mr. McCreary suffered from “a history of mental health issues,” including past diagnoses of schizophrenia, Tourett’s Syndrome, and R/O pervasive developmental disorder. Further, Dr. Kirkpatrick diagnosed Mr. McCreary with depressive disorder, ADHD, antisocial personality disorder, and conduct disorder. Dr. Kirkpatrick determined that “placement in a prison environment would only aggravate” Mr. McCreary’s mental health issues. 106. Also prior to sentencing, the United States filed “Government’s Response To Defendant’s Objections To The Pre-Sentence Report And Motion For A Variance” in response to Mr. McCreary’s sentencing objections and request for variance due to his mental illness. In the same paragraph that the government argued Mr. McCreary should be denied any such variance, the government mentioned that “the defendant clearly has a significant history of mental illness” and “a history of mental instability.” 107. As part of Mr. McCreary’s sentence, Chief Judge Conrad of the Western District of North Carolina imposed the following special conditions upon Mr. McCreary: (1) “The defendant shall participate in a program of mental health
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testing and/or treatment under the guidance and supervision of the U.S. Probation Office” and (2) “The defendant shall remain in treatment and maintain use of any prescribed medications until satisfactorily discharged by the program and with the approval of the U.S. Probation Office.” 108. Between 2008 and 2010, Mr. McCreary was incarcerated at three different BOP facilities. At all of these facilities, he received regular psychological treatment, including out-of-cell counseling and tele-psych access, and was prescribed mental health medication. 109. In or about October 2010, the BOP transferred Mr. McCreary to USP Lewisburg. Initially, the BOP treated Mr. McCreary’s mental health issues with prescriptions of Depakote21 and Remeron22. However, in or around late 2011 or early 2012, the BOP changed his medication to the injectable form of Risperdal, which is a drug commonly prescribed to treat schizophrenia and bipolar disorder. Mr. McCreary was afraid of the injection and refused the medication. The BOP did not offer Mr. McCreary the oral form of Risperdal or any alternative medication for his mental health issues. Rather, Dr. Pigos suddenly withheld all mental health medication from Mr. McCreary. Subsequently, but while still incarcerated at USP Lewisburg, Dr. Andrew Edinger—a family practice and
21 Depakote (valproic acid) is an anticonvulsant medication used to treat mania in people with bipolar disorder. 22 Remeron (mirtazapine) is an antidepressant medication.
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general medicine doctor—restored Mr. McCreary’s access to mental health medication. 110. In or about May 2013, the BOP transferred Mr. McCreary to USP Florence where they provided him regular access to tele-psych treatment and prescribed him medication. 111. In or about March 2014, the BOP transferred Mr. McCreary back to USP Lewisburg. At the time, Mr. McCreary was taking BOP-prescribed Celexa. 23 During an intake interview, Mr. McCreary told Dr. Edinger that he had attempted suicide at USP Florence by cutting his wrists, was experiencing frequent suicidal thoughts, and was hearing voices. 112. In July 2014, Dr. Edinger ended Mr. McCreary’s Celexa prescription and denied him all other mental health medication. Despite prior diagnoses of—and prescription medication to treat—serious mental illness, both within and before entering the prison system, Mr. McCreary has received no mental health medication since returning to USP Lewisburg in 2014. 113. The mental health “treatment” Mr. McCreary has received consists of inadequate, cell-side conversations through the cell door and in full view of other men. As with the other Plaintiffs, such informal and cursory conversations cannot sufficiently address Mr. McCreary’s mental illness. Further, such public
23 Celexa (citalopram) is a SSRI antidepressant medication.
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conversations pose a serious physical threat to Mr. McCreary’s health, because, if other men learn the details of Mr. McCreary’s mental health problems, they are likely to assault and/or harass him either because his serious mental illness is socially unacceptable or because they fear him due to his serious mental illness. 114. Up until May 2017, Dr. Jennifer Enigk—an SMU psychologist at USP Lewisburg—would pull Mr. McCreary out of his cell for a five minute conversation in the prison showers, where she asked if he wanted a “packet” containing crossword puzzles and colorable cartoons. (Examples of these materials are attached at Exhibit A.) Mr. McCreary has made numerous requests for more substantive private therapy sessions, but all have been denied. 115. Since his return to USP Lewisburg in 2014, Mr. McCreary has not had access to the tele-psych despite numerous requests to see one. 116. In June 2016, the BOP Central Office determined that Mr. McCreary’s mental illness was too severe to send him to the Administrative Maximum Facility (“ADX”) at USP Florence and designated him to the STAGES program at USP Florence which is intended for inmates suffering from mental illness, specifically those with personality disorders and a history of self-injurious behavior. Despite this, the BOP continues to house Mr. McCreary at USP Lewisburg and refuses to prescribe him any medication.
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117. In March 2017, Mr. McCreary attempted suicide by overdosing on Tylenol. He had to have his stomach pumped, and was then put in four-points restraints for three hours followed by eleven hours in ambulatory restraints. 118. In May 2017, Mr. McCreary attempted suicide by hanging himself and was placed on suicide watch for five days. He is now in an “ADX cell,” a term used to describe a cell which has two doors at its entrance, one of which is a solid steel door and the other a grated door, and one cannot exit or enter the cell without the first door being fully closed and locked. He is in complete isolation where he cannot be heard by anyone as his ADX cell is removed from all other prisoners. 119. Mr. McCreary is receiving weekly “therapy” which consists of a brief (approximately two-minute) conversation behind the door during which he must yell to be heard. 120. On May 8, 2017, Mr. McCreary was upgraded to CARE3-MH, but was recently told by Dr. Edinger that he does not “need” medication. He has not been out of his cell since May 16, 2017. 121. In addition to numerous failed in-person requests for proper mental health treatment, Mr. McCreary has sought administrative relief regarding his mental health treatment at USP Lewisburg, and all efforts have been rejected. In his various grievance filings, Mr. McCreary has expressed fear for his safety due to his untreated suicidal thoughts.
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Richard C. Anamanya 122. Richard C. Anamanya, BOP Register Number 37750-007, is currently incarcerated at USP Lewisburg. Mr. Anamanya is scheduled for release on November 18, 2037. 123. Over the past twenty years, Mr. Anamanya has received multiple diagnoses of mental illness and other mental health concerns, both inside and outside the correctional system. In connection with these diagnoses, Mr. Anamanya has been prescribed several psychotropic medications to treat his mental illness. 124. In or around November 1998, when he was 15 years old, Mr. Anamanya was seen at the Progressive Life Center of Prince George’s County, Maryland, where he was diagnosed with major depressive disorder, psycho-social and environmental stressors, and chronic depression, and was prescribed medication. 125. In or around February 1999, when he was 17 years old, Mr. Anamanya was admitted to the Psychiatric Institute of Washington (“PIW”) in Washington, DC, because he was aggressive, talking to himself, and unable to recognize family members. While at PIW, Mr. Anamanya was prescribed psychotropic medications. 126. In September 2005, Mr. Anamanya was admitted to Saint Elizabeth’s Hospital in Washington, D.C. (“St. Elizabeth’s”) for an assessment of his competency to stand trial. St. Elizabeth’s is Washington, D.C.’s public psychiatric
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facility for individuals with serious and persistent mental illness who need intensive inpatient care to support their recovery. St. Elizabeth’s also provides mental health evaluations and care to patients committed by D.C. courts. 127. The psychologist who conducted the court-ordered Forensic Psychological Assessment (i.e., a mental health evaluation) diagnosed Mr. Anamanya with clinical depression, mood disorder, cannabis abuse, alcohol abuse, antisocial personality disorder, and seizure disorder. He was prescribed Depakene,24 Cogentin,25 and Risperdal.26 128. In January 2006, Mr. Anamanya’s criminal defense attorney requested a second competency to stand trial evaluation. The psychologist who conducted the evaluation found that Mr. Anamanya was suffering from “considerable auditory hallucinations and delusional thinking.” He further stated that “it appears a much more appropriate Axis I diagnosis . . . would be one that takes into account his psychotic condition” and concluded that “it is most likely that his diagnosis is one of Shizoaffective Disorder.” The psychologist also concluded that Mr. Anamanya
24 As relevant here, Depakene (valproic acid) is an anticonvulsant medication used to treat mania in people with bipolar disorder. 25 Cogentin (benztropine mesylate oral) is primarily used to treat symptoms of Parkinson’s disease and tremors caused by other medical conditions or drug use. Cogentin is sometimes prescribed for other uses. 26 Risperdal (risperidone) is an atypical antipsychotic medication used to treat symptoms of schizophrenia, episodes of mania in people with bipolar disorder.
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would benefit from a “continued regimen of anti-psychotic and mood stabilizing agents.” 129. Mr. Anamanya was incarcerated at USP Atlanta from approximately July 2006 to January 2007. While incarcerated at USP Atlanta, Mr. Anamanya was diagnosed with mood disorder and antisocial personality disorder. Mr. Anamanya did not receive therapy, but he was prescribed medication. 130. From approximately May 12, 2009 to 2011, Mr. Anamanya was incarcerated at USP Lewisburg for the first time. For a portion of this period, Mr. Anamanya received individual counseling twice per week and was prescribed Depakene and Risperdal. 131. Between the end of 2011 and 2015, Mr. Anamanya was housed at four different BOP facilities. At various facilities, he was diagnosed with antisocial personality disorder, adjustment disorder, depressive disorder, and anxiety disorder. At all of the facilities he was prescribed mental health medication including Haldol,27 Prozac, Zoloft, 28 and Buspar. 29
27 As relevant here, Haldol (haloperidol) is a conventional antipsychotic medication used to treat psychotic disorders. 28 As relevant here, Zoloft (sertraline) is a selective serotonin reuptake inhibitor (SSRI) medication that is also used to treat obsessive-compulsive disorder, panic attacks, posttraumatic stress disorder, and social anxiety disorder. 29 Buspar (buspirone) is a medication used to treat anxiety disorders or symptoms of anxiety.
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132. While incarcerated at USP Big Sandy, Mr. Anamanya also received a suicide risk assessment, a behavior management plan, and individual therapy and counseling. 133. On or around August 10, 2015, Mr. Anamanya was transferred to USP Lewisburg. Upon arrival, Mr. Anamanya did not receive a mental health evaluation, and has not received adequate mental health care. 134. Upon arrival at USP Lewisburg, Mr. Anamanya received an evaluation from Dr. Edinger who is not a psychologist. Dr. Edinger noted Mr. Anamanya’s history of depression, and assessed Mr. Anamanya to have adjustment disorders with mixed disturbance of emotions and conduct, unspecified depressive disorder, antisocial personality disorder, and additional psychosocial and environmental problems. Dr. Edinger noted that Mr. Anamanya had been prescribed Zoloft and Buspar prior to his arrival at USP Lewisburg. 135. On or around September 11, 2015, Dr. Edinger discontinued Mr. Anamanya’s mental health medication with no explanation other than that he no longer needed it. 136. On or around September 26, 2015, following Mr. Anamanya’s grievance on the issue, Dr. Edinger re-prescribed mental health medication. At various points he was prescribed Zoloft and Citalopram.
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137. On or around December 9, 2015, Mr. Anamanya’s medication was discontinued. According to the BOP, this was the result of Mr. Anamanya not taking his medication during “pill line,” which is when medical staff make rounds to each cell block to distribute medication. Mr. Anamanya exhausted his grievances on this issue but has received no recourse. He has not received medication since December 2015. 138. Since being incarcerated at USP Lewisburg, Mr. Anamanya has not received adequate therapy or counseling for his mental health issues. On several occasions, Mr. Anamanya has asked to speak with members of the USP Lewisburg Psychology Services department about his mental health and suicidal thoughts, and all of these requests have been ignored or disregarded. 139. The only mental health “treatment” Mr. Anamanya has received are the inadequate, cell-side conversations through the cell door and in full view of other men, and the receipt of “packets” containing crossword puzzles and colorable cartoons. (Examples of these materials are attached at Exhibit A). 140. Mr. Anamanya has never seen the tele-psych despite numerous requests to do so. Mr. Anamanya has attempted to take his life three times since arriving at USP Lewisburg, and he has had several suicide risk assessments, but he has never been placed on suicide watch. He has also repeatedly been placed into four-point
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restraints for expressing his suicidal thoughts and for behavioral issues related to his untreated mental illness. 141. In or around February 2017, Mr. Anamanya received an 18-month SMU evaluation. It did not involve a mental health evaluation. 142. As recently as March 2017, Mr. Anamanya asked for treatment because he recently began hearing voices and is still having suicidal thoughts, yet he has received no mental health treatment. 143. Mr. Anamanya has sought administrative relief regarding a number of issues, including requests for a psychological evaluation, for his mental health care level to be upgraded, and for an individual treatment plan. 144. Mr. Anamanya’s efforts have all been rejected, and he has been told to submit another “cop-out” or speak to psychologists during rounds.
Joseph R. Coppola 145. Joseph R. Coppola, BOP Register Number 33874-048, is currently incarcerated at USP Lewisburg. Mr. Coppola is scheduled for release on January 26, 2018. 146. Throughout childhood, Mr. Coppola bounced around numerous group homes and shelters and received mental health treatment at various institutional facilities. His last visit to a mental health facility prior to his incarceration was in 1990 when he was 18 years old and serving in the U.S. Navy. At that time, Mr.
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Coppola was seen at the Naval Medical Center (“NMC”) San Diego (informally referred to as “Balboa Hospital”), where he was diagnosed with bipolar disorder and prescribed mental health medication. 147. Mr. Coppola had been referred for evaluation at the NMC after “behaving in a bizarre manner,” including taking off all his clothes except for his shorts and washing his clothes in the barrack courtyard, at times looking around suspiciously, crawling under the wash rack and splashing water on himself. While be treated at the NMC Emergency Room, he was uncooperative, belligerent, and eventually required four point restraints when he tried to escape in response to a request that the side rails be raised on the gurney. 148. Mr. Coppola was subsequently discharged from the U.S. Navy as “unfit for further duty” due to his mental illness. 149. During a previous incarceration, while housed at the Federal Transfer Center in Oklahoma City, Mr. Coppola received a Brief Counseling Session from a psychologist who noted that Mr. Coppola was “a mental health transfer case” and that his file materials “indicate[d] a history of schizophrenia and anxiety.” 150. Additionally, Mr. Coppola’s Evaluation Upon Arrival to FCI Terminal Island in 2001 mentions that “his records indicated a history of depression as well as bipolar disorder.
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151. In the case resulting in Mr. Coppola’s current incarceration, the United States moved for a hearing to determine the mental competency of the defendant and psychiatric evaluation arguing that Mr. Coppola had made several statements that were “non-responsive” and that “called into question his competency.” 152. Mr. Coppola’s sentencing memorandum also discusses his mental health, explaining that his “behavior closely fits a pattern of continuing mental health problems that may have not been adequately addressed through treatment including pharmacological intervention.” 153. From 2005 through 2013, Mr. Coppola was incarcerated in ten different BOP facilities. He was transferred several times for episodes relating to his mental health disorder. During his incarceration at USP Hazelton, Mr. Coppola received a Medication Review. The psychologist who conducted that review noted that Mr. Coppola had an “[o]ld dx of bi-polar that may be incorrect, but he is similar to BiPolar II.” 154. On January 2, 2013, Mr. Coppola submitted an “Official Notice of Serious Mental Disorder” to the Disciplinary Hearing Officer at FCI Phoenix. In the Notice, Mr. Coppola informed the hearing officer of his bipolar disorder diagnosis and his history of taking medication for his mental health. Mr. Coppola also highlighted paragraphs 13 and 23 of his Pre-sentence Report, which also identify his bipolar disorder. Mr. Coppola appended to the Notice a “Response Summary”
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from a psychology page of a “Program Review” on which Mr. Coppola’s “history of mental health diagnosis prior to incarceration,” including “depression, bipolar … history of taking Lithium30 and Thorazine31” are clearly documented. 155. While Mr. Coppola has been incarcerated, he has made over 80 requests, including 25 at USP Lewisburg, for treatment of his bipolar disorder. Every one of these requests has been refused or ignored. According to Mr. Coppola, this lack of treatment during his incarceration—especially when it was for 24 hours-a-day, seven days-a-week in a SHU setting—has triggered extreme mood swings, worsening his bipolar disorder and resulted in his loss of over two years of good time. 156. Mr. Coppola arrived at USP Lewisburg on August 17, 2015 to begin Level I of the SMU Program. Mr. Coppola did not meet with a psychologist when he arrived at USP Lewisburg. 157. Since arriving at USP Lewisburg, Mr. Coppola has not received a single mental health evaluation. His treatment request forms have been denied or ignored. His only contact with mental health staff at USP Lewisburg is through the cell-side conversations that last a matter of seconds. Mr. Coppola’s fears of torture
30 Lithium is an antimanic agent medication used to treat and prevent episodes of mania in people with bipolar disorder. 31 Thorazine (Chlorpromazine) is an antipsychotic medication primarily used to treat psychotic disorders such as schizophrenia.
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and beatings prevent him from announcing any of his mental health issues to a Psychology Staff member walking by the other side of his cell door, in a place where prison staff and other men could easily overhear the conversation. 158. Mr. Coppola was receiving Gabapentin32 for his sciatica when he arrived at USP Lewisburg. He had heard the medication may also be a mood stabilizer, but he was taken off of the medication on or around March 3, 2016 by Dr. Kevin Pigos. Mr. Coppola did not receive a replacement until or around December 15, 2016, when Dr. Edinger prescribed for him Duloxetine33. 159. In July 2016, Mr. Coppola submitted a request for treatment of his bipolar disorder. On July 29, 2016, Mr. Coppola’s request was rejected. The rejection stated that Mr. Coppola’s only current diagnosis was antisocial personality disorder and that there is no evidence of a diagnosis of bipolar disorder during his incarceration, although bipolar disorder is a lifelong condition without care. The rejection informed Mr. Coppola that if he was in fact experiencing specific symptoms, he was welcome to discuss them with a psychologist during unit rounds – the rounds that are conducted in full ear shot of other men and the very prison staff that he believes have abused him. In Mr. Coppola’s experience, even
32 As relevant here, Gabapentin is an anticovulsant medication used to help control seizures in people with epilepsy. Gabapentin treats seizures by decreasing abnormal excitement in the brain. 33 Duloxetine (Cymbalta) is a medication prescribed for major depressive disorder, generalized anxiety disorder, fibromyalgia and neuropathic pain.
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expressing a desire to speak to a psychologist during rounds is fruitless. On at least one occasion, Mr. Coppola raised the issue of his bipolar disorder with Dr. Enigk, who told Mr. Coppola she would not argue with him about being bipolar because she “knows” he is not. 160. On August 17, 2016, Mr. Coppola signed a form that indicated he had completed the SMU program. However, on August 28, 2016, Mr. Coppola was involved in a disciplinary incident that resulted in his placement in restraints for 22 hours, from which he still has marks on his wrists. Mr. Coppola filed a misconduct charge over the incident, but it was rejected at every level. As punishment for this incident and for his filing the misconduct charge, Mr. Coppola lost good time and was notified that his SMU completion had been “cancelled.” After this incident, Mr. Coppola withdrew a lawsuit he had filed against the BOP for fear he would face additional, severe retaliation. 161. On or around February 15, 2017, Mr. Coppola received an 18-month SMU evaluation from Dr. Enigk. The review took place in the shower. It appeared to Mr. Coppola that Dr. Enigk was relying on a checklist to conduct the evaluation and did not provide substantive treatment. Dr. Enigk asked Mr. Coppola questions such as how he feels his time at USP Lewisburg has been and what he (Mr. Coppola) could have done to improve his time at USP Lewisburg. This review again stated that Mr. Coppola’s only diagnosis was antisocial personality disorder.
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162. Mr. Coppola has not received any medication for his bipolar disorder the entire time he has been in the prison system and no treatment for his diagnosis of antisocial personality disorder. Despite the clear diagnosis of bipolar disorder he received in 1990, Mr. Coppola has never been diagnosed as bipolar by the prison system and has never received treatment for the disorder. He has never received a psychological interview nor been pulled out of his cell for individual or group therapy. Mr. Coppola has never spoken with the tele-psychologist during his time in the BOP
CLASS ACTION ALLEGATIONS 163. Plaintiffs bring the causes of action identified below on behalf of themselves and all other persons similarly situated pursuant to Federal Rule of Civil Procedure 23(b)(2). For those causes of action, Plaintiffs seek injunctive and declaratory relief applicable to members of the class, as defined below. 164. Plaintiffs bring this action on behalf of the following class: All persons who were, as of the filing date of the complaint in this case, or are now, or will be in the future, confined to the custody of the United States Bureau of Prisons in the United States Penitentiary Lewisburg and suffer from a Serious Mental Illness or a Mental Illness, requiring treatment under one or more of the BOP’s CARE levels as set forth in Program Statement 5310.16 (May 1, 2014).
a. “Serious Mental Illness” is a group of diagnoses that exist on a continuum of the broader category of mental illness. The BOP, in
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Program Statement 5310.16, defines certain diagnoses as Serious Mental Illness, and others as Mental Illness. An individual’s diagnosis and treatment needs may vary over time. For purposes of this class definition, “Serious Mental Illness” means a diagnosis of one of the disorders listed in said Program Statement as those “generally classified as serious mental illness,” i.e., schizophrenia spectrum and other psychotic disorders, major depressive disorder (all types), or bipolar and related disorders, or a diagnosis of those disorders listed in said Program Statement as “often classified as serious mental illness,” that result in significant functional impairment, i.e., anxiety disorders, obsessive-compulsive and related disorders, trauma and stressor-related disorders, intellectual disabilities and autism spectrum disorders, major neurocognitive disorders, and personality disorders, regardless of the CARE level assigned to that individual for treatment purposes; b. “Mental Illness” are other illnesses recognized by BOP in Program Statement 5310.16 as existing in the continuum of diagnosed conditions requiring mental health treatment. For purposes of this class definition, “Mental Illness” means a diagnosis of a mental disorder defined in Program Statement 5310.16 as “a syndrome characterized by clinical significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning [and is] usually associated with significant distress or disability in social, occupational, or other important activities” that requires mental health services pursuant to CARE levels CARE2-MH, CARE3-MH or CARE4-MH, as set forth in Program Statement 5310.16. c. “CARE levels” means the mental health care levels used by the BOP to classify individuals based on their need for mental health services; levels CARE1- MH through CARE4-MH are described in detail in Program Statement 5310.16.
165. Class action status for this litigation is proper under Rule 23(b)(2) because:
a. The class is so numerous that joinder of all members is impractical. Due to the nature of the facility at issue and the mental health afflictions known to Plaintiffs and their counsel, upon information and belief, the total number of class members is dozens;
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b. There are questions of law and fact common to the class, including without limitation: whether Defendants’ failure to maintain an adequate program for appropriate mental health evaluations at USP Lewisburg leads to a failure to provide constitutionally adequate mental health treatment to individuals with mental illness; whether Defendants violate their own written policies and procedures and the Constitution by placing individuals with serious mental illness in the SMU at USP Lewisburg; whether Defendants violate their own written policies and the Constitution by taking inappropriate disciplinary actions against individuals with mental illness; whether Defendants violate their own written policies and the Constitution by failing to maintain an adequate program to diagnose and treat individuals with mental illness at USP Lewisburg; whether class members are subject to harm as a result of Defendants’ practices that fail to provide adequate treatment for individuals diagnosed with a mental illness, including a serious mental illness; and whether Defendants’ repeated violations of numerous mental health policies have placed members of the class at risk for increased psychological and/or physical harm;
c. Plaintiffs’ claim is typical of the claim of the class, in that each named Plaintiff has at least one mental illness, sometimes a serious mental illness, for which he has not received appropriate treatment, and Plaintiffs’ claim and the claim of the class arises from the same policies, practices, and procedures implemented by Defendants at USP Lewisburg;
d. Plaintiffs and all members of the class have been similarly affected by Defendants’ common course of conduct;
e. Plaintiffs will fairly and adequately protect the interests of the class as there is no conflict between Plaintiffs and the other class members; and
f. Plaintiffs can adequately represent the interests of the class members and have retained counsel experienced in class action and prisoners’ rights litigation.
166. Defendants have acted and/or refused to act on grounds generally applicable
to the class, thereby making final declaratory and injunctive relief appropriate with
respect to the class as a whole under Federal Rule of Civil Procedure 23(b)(2).
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CLAIM FOR RELIEF
FIRST CLAIM FOR RELIEF
Violation of the Eighth Amendment to the United States Constitution – Failure to Treat (Asserted by Plaintiff Class)
167. Plaintiffs incorporate by reference the foregoing paragraphs of this
Complaint as though fully set forth herein.
168. The Eighth Amendment prohibits cruel and unusual punishment.
169. Defendants’ policies, practices, and procedures systemically violate the
Eighth Amendment rights of individuals with mental illness. Such policies,
practices and procedures include, without limitation:
a. Confinement of individuals with mental illness in the SMU for conduct directly attributable to their mental illness;
b. A disciplinary system that does not consider a prisoner’s serious mental illness and the impact of isolation in assessing whether to sanction the prisoner or, if so, the nature of the sanction;
c. Failure to provide minimally adequate psychiatric and psychological services to diagnosed individuals with mental illness in the SMU, resulting in unnecessary pain and suffering;
d. Refusal to consistently provide prescribed medications for treatment of psychiatric conditions
e. Maintenance of conditions in the SMU that exacerbate individuals’ serious mental illness, including near-constant isolation with little if any human contact; and
f. Failure to make available, maintain, and utilize adequate therapeutic alternatives to the SMU.
170. Defendants know or are deliberately indifferent to the fact that the numerous
individuals who have been diagnosed as having serious mental illness are placed in
the SMU for extensive time periods and that confinement in the SMU creates a
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substantial risk that those individuals’ mental illnesses will be exacerbated and that their mental health will deteriorate. Defendants also know or are deliberately indifferent to the fact that the mental health treatment provided to individuals with mental illness in SMU is inadequate and results in the exacerbation or unnecessary prolongation of individuals’ mental illnesses. 171. The impact of long-term isolation in the SMU has been brought to Defendants’ attention through numerous prisoner grievances and communications with individuals’ rights advocacy organizations. Nonetheless, Defendants have refused to take reasonable steps to correct this systemic violation of individuals’ rights. 172. Defendants have acted, or failed to act, with deliberate indifference to the health and safety of individuals with serious mental illness. As a direct and proximate result of their acts and omissions, the Eighth Amendment rights of such individuals have been violated, are being violated, and will continue to be violated.
PRAYER FOR RELIEF Plaintiffs therefore respectfully request that this Court grant the following relief: 173. Exercise jurisdiction over this action;
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174. Issue appropriate declaratory and injunctive relief to stop the constitutional violations described above and to ensure that men housed in the SMU at USP Lewisburg receive constitutionally adequate mental health care; 175. Award reasonable attorneys’ fees, litigation expenses, and costs pursuant to 42 U.S.C. § 1988; 176. Grant such other relief as this Court deems just and proper.

Dated: June 9, 2017

Respectfully submitted,
_/S/ Alexandra Morgan-Kurtz___
Alexandra Morgan-Kurtz PENNSYLVANIA INSTITUTIONAL LAW PROJECT PA ID No. 312631 100 Fifth Ave, Suite 900 Pittsburgh, Pa 15222 (412) 434-6175 amorgan-kurtz@pailp.org
Kevin H. Metz (pro hac vice pending) Marissa R. Boynton (pro hac vice pending) LATHAM & WATKINS LLP 555 Eleventh Street NW Washington, DC 20004 Tel: (202) 637-2200 kevin.metz@lw.com marissa.boynton@lw.com
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Philip Fornaci (pro hac vice pending) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, DC 20036 Tel: (202) 319-1000 Phil_fornaci@washlaw.org
Attorneys for Plaintiffs
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 Case 1:17-cv-01011-YK-SES Document 57 Filed 05/31/18 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JUSAMUEL RODRIGUEZ MCCREARY, et al.,
Plaintiffs,
v.
THE FEDERAL BUREAU OF PRISONS, et al.,
Defendants.

: CIVIL NO: 1:17-CV-01011 : : : : (Judge Kane) : : (Chief Magistrate Judge Schwab) : : : :

ORDER May 31, 2018

I. Introduction.

Presently before the Court is the Plaintiffs’ motion to file certain documents in this litigation under seal. See doc. 52. For the reasons set forth below, the Plaintiffs’ motion will be denied. II. Background.
The Plaintiffs, Jusamuel Rodriguez McCreary, Richard C. Anamanya, and Joseph R. Coppola, commenced this action by filing a complaint on June 9, 2017, raising claims concerning the allegedly inadequate and unconstitutional treatment of prisoners suffering from mental illness who are housed within the Special Management Unit at the United States Penitentiary in Lewisburg, Pennsylvania

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(“USP Lewisburg”).1 See doc. 1. On October 2, 2017, the Defendants, who consist of the Federal Bureau of Prisons, its Director, Thomas R. Kane, and the Warden at USP Lewisburg, David J. Ebbert, moved to dismiss Plaintiffs’ complaint or, in the alternative, moved for summary judgment on the claims contained therein. See doc. 23. In concert with their motion, the Defendants also filed a brief in support (doc. 29) and a statement of the material facts (doc. 28). Attached to the exhibits, which have been filed in support of the Defendants’ statement of the material facts, are the Plaintiffs’ medical records, and specifically, the Plaintiffs’ mental health records, from when they were incarcerated at USP Lewisburg. See docs. 31-1, 31-2, 31-3. And, a few months later, on December 21, 2017, the Defendants filed another motion, this time seeking a stay on discovery until the Court rules on their motion to dismiss or, in the alternative, their motion for summary judgment. See doc 45.
The Plaintiffs have not only responded to the Defendants’ pending motions (see docs. 38, 49), but they have also filed their own motion, requesting the Court to issue an Order, which directs that their medical records be sealed and that the
1 The Plaintiffs have not only filed the complaint, “each individually[,]” but they have also filed the complaint “on behalf of all others similarly situated[.]” Doc. 1 at 1. And, in this regard, they have filed a motion, seeking class certification. See doc. 14. Notably, that motion, which has been previously stayed by the Court, is not the focus of our discussion here. See doc. 44 (containing our order, staying the Plaintiffs’ motion for class certification).
2

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parties’ additional filings to date, which describe information derived directly from those medical records, also be sealed and that the parties be required to refile redacted versions of those filings on the docket. See doc. 52; see also docs. 53, 56.2 In support of their request, the Plaintiffs contend that their medical records contain sensitive and personal information that should be shielded from the public. See doc. 53. The Defendants have adamantly opposed the Plaintiffs’ motion by filing a brief in opposition (doc. 55), and the Plaintiffs have since filed a reply brief (doc. 56).
Although all of the parties’ motions have been briefed, our focus now is only on the Plaintiffs’ motion to file certain documents in this litigation under seal. For the reasons set forth more fully below, we will deny that motion. But, for the benefit of the parties, we note that, in due course, we will issue a separate Report and Recommendation on the Defendants’ motion to dismiss or, in the alternative, motion for summary judgment. Within that Report and Recommendation, we will also address the Defendants’ motion seeking a stay on discovery.
2 Although the parties attempted to negotiate a joint-motion to seal the medical records, their attempts proved fruitless, thus necessitating the filing of the Plaintiffs’ instant motion. See doc. 53 at 1.
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III. Discussion. “It is well-settled that there exists, in both criminal and civil cases, a
common law public right of access to judicial proceedings and records.” In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001) (citing Littlejohn v. BIC Corporation, 851 F.2d 673, 677-78 (3d Cir. 1988)). This right of access “extends beyond simply the ability to attend open court proceedings.” In re Cendant Corp., 260 F.3d at 192. It also extends to “a pervasive common law right ‘to inspect and copy public records and documents, including judicial records and documents.’” Id. (quoting Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157, 161 (3d Cir. 1993)). As instructed by the United States Court of Appeals for the Third Circuit, “the right of access strengthens confidence in the courts[,]” “promotes public respect for the judicial process[,] and helps assure that judges perform their duties in an honest and informed manner.” In re Cendant Corp., 260 F.3d at 192 (quotations and citations omitted).
In order to determine whether a document is subject to a right of public access, we apply a two-step analysis. See In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 497 F. App’x 66, 67 (Fed. Cir. 2013) (applying the law of the Third Circuit, and opining that this Circuit applies a twostep analysis in order to determine whether a judicial record is subject to a right of public access). Initially, we must ask whether the document is a “judicial record,”
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that is, whether it “has been filed with the court, or otherwise somehow incorporated or integrated into a district court’s adjudicatory proceedings.” In re Cendant Corp., 260 F.3d at 192 (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 780-83 (3d Cir. 1994)); cf. N. Jersey Media Grp. Inc v. United States, 836 F.3d 421, 435 (3d Cir. 2016) (reiterating “that ‘there is a presumptive right to public access to all material filed in connection with nondiscovery pretrial motions, whether these motions are case dispositive or not, but no such right as to discovery motions and their supporting documents.” (quoting Leucadia, 998 F.2d at 165 (emphasis added))). But, of course, the document filed “must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document.” N. Jersey Media Grp., 836 F.3d at 435. And so, if the document ultimately qualifies as a “judicial record,” then there is strong presumption in favor of public access, which in turn, “disallows the routine and perfunctory closing” of the judicial record. In re Cendant Corp., 260 F.3d at 193-94 (citing Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994)).
Next, we must ask whether that strong presumption of public access has been rebutted. See In re Cendant Corp., 260 F.3d at 194 (stating that while the common law right to public access “is a recognized and venerated principle,” it is “not absolute” (quotation omitted)). In order to rebut the presumption, the party seeking “the sealing of part of the judicial record ‘bears the burden of showing that
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the material is the kind of information that courts will protect’ and that ‘disclosure will work a clearly defined and serious injury to the party seeking closure.’” Id. (quoting Miller, 16 F.3d at 551); see also Miller, 16 F.3d at 551 (explaining that “[a] party who seeks to seal an entire record faces an even heavier burden.” (emphasis in original)). Thus, in characterizing the injury to be prevented, “specificity is essential. Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient.” In re Cendant Corp., 260 F.3d at 194 (internal citation omitted). And, “[a]s is often the case when there are conflicting interests, a balancing process is contemplated[:]” we must balance the strong presumption of public access against the factors which militate against such access. Id. The United States Court of Appeals for the Third Circuit has expressly recognized that this balancing process for and against public access is a decision that is committed to the sound discretion of the district court. Id. at 197.
Here, consistent with the two-step analysis set forth above, we first ask whether the documents, which the Plaintiffs seek to file under seal, qualify as judicial records. In the instant motion, the Plaintiffs are seeking to seal their medical records and other documents, which describe information that has been derived directly from those medical records. See doc. 53 at 9. Because these records and documents have been filed with this Court, and because they are relevant to and useful in this Court’s adjudicatory proceedings, we plainly
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conclude that they qualify as judicial records. See In re Cendant Corp., 260 F.3d at 192; N. Jersey Media Grp. Inc., 836 F.3d at 435. And, because they qualify as judicial records, we further conclude that there is strong presumption in favor of public access to those records.
Next, we must ask whether the Plaintiffs have rebutted that presumption. See In re Cendant Corp., 260 F.3d at 194. In other words, have the Plaintiffs shown that the judicial records contain “the kind of information that courts will protect” and that disclosure of those records “will work a clearly defined and serious injury to the party seeking closure.” Id. (quotations and citation omitted). Regarding whether the documents contain the kind of information that courts will protect, we observe, and are in accord with, the Plaintiffs’ contention that the United States Court of Appeals for the Third Circuit “has ‘long recognized the right to privacy in one’s medical information.’” Doc. 53 at 5 (quoting Doe v. Delie, 257 F.3d 309, 315 (3d Cir. 2001))); see also doc. 56 at 6 (reiterating the same contention). Indeed, the Court of Appeals has expressly stated as follows: “‘[t[here can be no question that . . . medical records, which may contain intimate facts of a personal nature, are well within the ambit of materials entitled to privacy protection.” Doe, 257 F.3d at 315 (quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980)); see also Malleus v. George, 641 F.3d 560, 564-65 (3d Cir. 2011) (citing cases and opining that the following categories
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of information are entitled to privacy protection: sexual information, medical information, and some financial information). Thus, consistent with this precedent, we conclude that the Plaintiffs have shown that their medical records contain the type of information that courts will generally protect.
We must now consider whether the Plaintiffs have also shown that the disclosure of the information in their medical records, and any related filings, “will work a clearly defined and serious injury” to them. See In re Cendant Corp., 260 F.3d at 194. In this regard, the Plaintiffs argue—rather broadly—that the information contained in those records place “their privacy interests, security, and well-being at risk.” Doc. 53 at 6. They further argue—again, rather broadly—that if this information remains on the public docket, then their privacy interests will be “irreparably harmed.” Id. They finally argue that any further dissemination of this information may put them at risk of being targeted by other inmates due to the stigmas that surround certain medical conditions. Id. at 7.
The Defendants, on the other hand, contend that the Plaintiffs have failed to substantiate their claims by citing to specific examples or by offering articulated reasoning. See doc. 55 at 5. The Defendants further contend that it was the Plaintiffs themselves who placed their mental health at issue by filing the complaint, outlining alleged deficiencies in their medical treatment. Id. at 3, 5-6. Thus, the Defendants argue that the Plaintiffs’ medical records, which have been
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filed in support of their dispositive motion, are being used in a good faith defense against the allegations that have been raised in the complaint.3 See id. at 5-6.
In addition, the Defendants argue that other inmates do not have access to the medical records that were filed in support of their dispositive motion because such inmates do not have access to PACER and cannot, therefore, access the docket. Id. at 6. The Defendants similarly contend that the BOP monitors inmate mail and, for that reason, the BOP would be able to intercept any medical records, should someone pay to download those records from PACER and then attempt to mail those records to an inmate. See id. And, along those same lines, the Defendants contend that if any of the Plaintiffs’ medicals records were found in another inmate’s cell, those records would be routinely confiscated. See id. at 6-7.
Finally, the Defendants contend that while there may be some, limited circumstances in which the BOP would proactively redact portions of medical or psychology records, this case does not represent such circumstances. Id. at 8. For instance, the Defendants explain, if the records discussed safety or security issues, such as “HIV status or gang affiliations[,]” then the BOP would consider proactively redacting those portions. Id. The Defendants argue, however, that,
3 As pointed out by the Defendants, the Plaintiffs, who have filed their complaint on the public docket, have not requested the Court to seal this pleading, either at the time it was filed or at any point in the instant motion. Doc. 55 at 7. The Defendants contend, therefore, that the public has an interest in knowing the BOP’s response to the allegations that are contained in the complaint. Id.
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here, it would be unduly burdensome to require them to file every medical or
psychology record under seal. Id.
Having thoroughly reviewed the parties’ arguments, the underlying record,
and the relevant case law, we conclude that the Plaintiffs have not adequately
shown that disclosure will work a clearly defined and serious injury to them. The
Plaintiffs’ motion and supporting briefs have only set forth broad and conclusory statements about such an alleged injury.4 These types of unsubstantiated claims,
however, are insufficient under relevant Third Circuit case law. See, e.g., In re
Cendant Corp., (“In delineating the injury to be prevented, specificity is essential.
Broad allegations of harm, bereft of specific examples or articulated reasoning, are
insufficient.” (internal citation omitted)). Thus, we conclude that the Plaintiffs, as
the movants, have not met the showing that is required to justify the perfunctory
closing of the discussed judicial records. Accordingly, we will deny the Plaintiffs’ motion to seal. 5
4 It is neither the Court’s task to rummage through the medical records in order to identify the sensitive and personal information that exists in those records, nor the Court’s duty to articulate a sufficient basis as to why public disclosure of that information will work a clearly defined and serious injury to the Plaintiffs. 5 In addition to the common law right of access, the United States Court of Appeals “has held that the ‘First Amendment [also] embraces a right of access to [civil] trials.’” In re Cendant Corp., 260 F.3d at 198 n. 13 (quoting Publicker, 733 F.2d at 1070). Notably, “[t]his right exists independently of the common law right of access.” In re Cendant Corp., 260 F.3d at 198 n.13 (citation omitted). And, “[t]he general rationale behind this right is that ‘[p]ublic access to civil trials . . . plays an
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IV. Order. Based upon the foregoing, the Court concludes that the Plaintiffs have not
overcome the presumption that favors the public right of access to judicial records. Thus, IT IS HEREBY ORDERED that the Plaintiffs’ motion to seal (doc. 52) is DENIED without prejudice.
S/Susan E. Schwab Susan E. Schwab United States Chief Magistrate Judge
important role in the participation and the free discussion of governmental affairs.’” In re Cendant Corp., 260 F.3d at 198 n. 13 (quoting Publicker, 733 F.2d at 1070). Because, however, this right “requires a much higher showing than the common law right to access” (id.), and considering that the Plaintiffs’ have not even met the showing for the common law right to access, and further considering that the parties’ present dispute only focuses on the common law right to access, we need not discuss the First Amendment right of access to civil proceedings.
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 Case 1:17-cv-01011-YK Document 58 Filed 06/20/18 Page 1 of 56

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JUSAMUEL RODRIGUEZ MCCREARY, et al.,
Plaintiffs,
v.
THE FEDERAL BUREAU OF PRISONS, et al.,
Defendants.

: CIVIL NO: 1:17-CV-01011 : : : : (Judge Kane) : : (Chief Magistrate Judge Schwab) : : : :

REPORT AND RECOMMENDATION I. Introduction.
This matter involves the treatment of prisoners who are housed within the Special Management Unit at the United States Penitentiary in Lewisburg, Pennsylvania (“USP Lewisburg”). The Plaintiffs, who are proceeding with counsel, contend that prisoners in this Special Management Unit are not receiving constitutionally adequate mental health treatment. As a result, they have filed the instant complaint, not only on behalf of themselves, but on behalf of all other persons who are similarly situated. They seek declaratory and injunctive relief, which would require the Defendants to end the allegedly unconstitutional treatment, and which would further require the Defendants to ensure that the

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prisoners housed within this Special Management Unit receive constitutionally adequate mental health treatment.
Although several motions are currently pending before this Court, the focus of our Report and Recommendation is on the following two motions: the Defendants’ motion to dismiss or, in the alternative, motion for summary judgment; and the Defendants’ motion to stay discovery until 30 days after the Court has issued a final ruling on their dispositive motion. We have comprehensively reviewed these motions, as well as the parties’ arguments and the relevant case law. For the reasons set forth below, we recommend that the Defendants’ dispositive motion be denied and that the Defendants’ motion to stay also be denied. II. Background.
Following “an almost two-year investigation by more than a dozen pro bono lawyers, based on interviews with more than 30 inmates and the review of publicly available information regarding the treatment of mentally ill prisoners within the Special Management Unit [at USP Lewisburg,]” (doc. 38 at 9), the Plaintiffs, Jusamuel Rodriguez McCreary (“McCreary”), Richard C. Anamanya (“Anamanya”), and Joseph R. Coppola (“Coppola”), filed their complaint, through counsel, on June 9, 2017. See doc. 1. The Plaintiffs have filed the complaint not only on behalf of themselves, but on behalf of all others similarly situated. See id.
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They have named, as the Defendants: the BOP; its Director, Thomas R. Kane (“Director Kane”); and the Warden of USP Lewisburg, David J. Ebbert (“Warden Ebbert”). See id.
In the complaint, the Plaintiffs have raised allegations regarding the allegedly inadequate and unconstitutional treatment of prisoners housed within the Special Management Unit at USP Lewisburg who are suffering from mental illness and serious mental illness.1 See id. In connection with these allegations, the Plaintiffs assert one claim for relief: a violation of the Eighth Amendment to the United States Constitution on the basis that Defendants have acted, or failed to act, with deliberate indifference to the health and safety of such prisoners. See id. at 54 (titling the claim as “Violation of the Eighth Amendment to the United States Constitution – Failure to Treat”). The Plaintiffs seek declaratory and injunctive relief, which would require the BOP to end this unconstitutional treatment and which would further require the BOP to ensure that these prisoners receive constitutionally adequate mental healthcare. See id. at 55-56 (seeking reasonable attorneys’ fees, litigation expenses, and costs as well). Along with the complaint, the Plaintiffs have also filed a motion for class certification and a brief in support thereof. See docs. 14, 19.
1 As articulated in the complaint, BOP Program Statement 5310.16 (May 1, 2014) “defines certain diagnoses as Serious Mental Illness, and others as Mental Illness.” Doc. 1 at ¶ 164(a)-(b) (discussing the difference between the two).
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On October 2, 2017, the Defendants responded to the complaint by filing a motion to dismiss or, in the alternative, a motion for summary judgment, along with a brief in support and a statement of the material facts. Docs. 23, 28, 29. The Defendants have also submitted exhibits in support of their statement of the material facts, and attached to those exhibits are the Plaintiffs’ medical records. See docs. 31-1, 31-2, 31-3.
In response to the Defendants’ motion, the Plaintiffs filed a brief in opposition, along with a response to the Defendants’ statement of the material facts. See docs. 38, 39. The Plaintiffs also filed a motion, seeking an order from the Court that their medical records, and any filings that describe information derived directly from those records, be sealed. See doc. 52. We have since denied the Plaintiffs’ motion to seal those documents, but without prejudice. See doc. 57 (opining that Plaintiffs had failed to overcome the strong presumption that weighs in favor of public access to judicial records).
Following the filing of their dispositive motion, the Defendants also requested the Court to stay a ruling on the Plaintiffs’ motion for class certification until a final decision is issued on their motion to dismiss or, in the alternative, their motion for summary judgment. Doc. 24. The Plaintiffs opposed that motion (doc. 33), and the Defendants filed a response thereto (doc. 35). In accordance with the telephonic status conference that was held with the parties on December 7, 2017,
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we granted the Defendants’ request and stayed the Plaintiffs’ motion for class certification pending a final decision on the Defendants’ dispositive motion. Doc. 44.
Then, on December 21, 2017, the Defendants filed another motion, this time seeking a protective order to stay discovery until 30 days after the Court has issued its final decision on their pending dispositive motion. See docs. 45, 46. The Plaintiffs have also opposed this motion (see doc. 49), and the Defendants have filed yet another response thereto (doc. 50).
Thus, presently before this Court are the following two motions: Defendants’ motion to dismiss or, in the alternative, their motion for summary judgment; and Defendants’ motion seeking a stay on discovery until 30 days after the Court issues its final decision on that dispositive motion. See docs. 23, 45. Both of these motions have been fully briefed by the parties and are ripe for our disposition. For the reasons set forth below, we recommend that the Defendants’ dispositive motion be denied and that the Defendants’ motion to stay also be denied.
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III. The Defendants’ Motion to Dismiss Should be Denied. In accordance with the standard of review for a Rule 12(b)(6) motion, we
will not only “accept all factual allegations in the complaint as true,” but we will also “construe the complaint in the light favorable to the plaintiff[s.]” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010).
A. Allegations in the Complaint. At the time the complaint was filed, named Plaintiffs McCreary, Anamanya, and Coppola, were housed in the Special Management Unit at USP Lewisburg. Doc. 1 at ¶ 18.2 Each named Plaintiff has been diagnosed with a serious mental illness, including bipolar disorder, major depression, and schizophrenia. Id. Collectively, they contend that the care they are receiving at USP Lewisburg for these illnesses is constitutionally infirm and that the Defendants are failing to satisfy their legal obligations to them.3 Id. The Plaintiffs further contend that the Defendants’ failure to implement adequate programs of mental health screening and treatment has subjected them to cruel and unusual punishment, exacerbated their mental illnesses, and subjected them to harm and injury, as well as to a
2 Since then, they have each been transferred to “another BOP institution.” Doc. 38 at 14. 3 The individual defendants, Director Kane and Warden Ebbert, have only been sued in their official capacities. Doc. 1 at ¶¶ 20, 21.
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serious risk of future harm. Id. at ¶ 100. In support of these contentions, the Plaintiffs have set forth the following factual allegations.
1. Operation of the Special Management Unit at USP Lewisburg. The Special Management Unit at USP Lewisburg, also commonly referred to as the SMU, was created by the BOP in order to house prisoners who had been determined to have “unique security and management concerns.” Id. at ¶ 22. According to the BOP’s policies, the “SMU is a multi-level program whose mission is to teach self-discipline, pro-social values, and the ability to coexist with members of other cultural, geographical, and religious backgrounds.” Id. at ¶ 24. Currently, the SMU is comprised of the following three levels: Level 1, which is expected to last 6-8 months, is based upon the prisoner’s compliance with behavioral expectations; Level 2, which is expected to last 2-3 months, is based upon the prisoner demonstrating potential for positive community interaction; and Level 3, which is expected to last 1-2 months, is based upon the prisoner’s ability to demonstrate positive community interaction skills. Id. at ¶¶ 27-28, 32. Ideally, the prisoners are intended to progress through all three of these levels until they graduate from the SMU and are moved to general population or are placed in another appropriate facility. Id. at ¶ 26. As explained by Plaintiffs, however, prisoners suffering from serious mental illness, who are not properly treated, find it very challenging if not impossible to
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complete these levels and thus find themselves being cycled through the SMU program multiple times, ultimately ending as an “SMU FAIL.” Id. at ¶ 32 As further explained by the Plaintiffs, prisoners can remain at any given level for a significantly longer period of time if the BOP finds that they are not ready to progress to the next level. Id. at ¶ 28. And, along those same lines, prisoners who receive disciplinary violations can be sent back to Level 1, where they must begin the SMU program all over again. Id. at ¶ 29.
All three levels afford the prisoners different privileges. Id. at ¶ 31 (also explaining, however, that for the vast majority of the prisoners in the SMU, their conditions of confinement are extremely restrictive). Prisoners at Levels 1 and 2 remain in their cells for 23 hours a day, and even though they are supposed to receive some access to telephones, each of the named Plaintiffs, for instance, assert having had their telephone privileges rescinded for years due to alleged disciplinary violations. Id. Moreover, regardless of the levels, all of the prisoners in the SMU are only allowed to have a maximum of 5 hours of recreation per week. Id. at ¶ 33. That recreation time is spent in a cage, which is only eight feet by twenty feet wide. Id. Sometimes a prisoner is alone in the cage, and other times a prisoner can be in there with as many as five other individuals. See id.
The Plaintiffs allege that, pursuant to BOP policies, prisoners are supposed to receive mental health evaluations every 30 days in the SMU, and prisoners, who
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require routine or follow-up mental health services, are to receive such services in accordance with other relevant BOP statements on mental health treatment. See id. at ¶¶ 34-36. Although the Plaintiffs acknowledge that these policies exist on paper, they allege that, in practice, most prisoners in the SMU never receive any mental health evaluations, let alone the necessary follow-up mental health services. Id. at ¶ 37.
2. Solitary Confinement. “Solitary confinement, known by many names, refers to the practice of holding an incarcerated person in a cell, alone or with a cellmate, between 22 and 24 hours per day, isolated from normal social interaction with others and subjected to severe restrictions impacting every aspect of their lives.” Id. at ¶ 38. The Plaintiffs allege that the serious, detrimental effects of long-term solitary confinement, especially for people who suffer from mental illness, has been known by the BOP and mental health experts for decades. See id. at ¶¶ 39-55 (setting forth data discussing the devastating effects of solitary confinement); id. at ¶ 42 (asserting that because of the increased risk of serious harm to which individuals in solitary confinement are exposed, various expert, legal, and human rights organizations have recommended that individuals suffering from mental illness should not be subjected to any form of prolonged placement in segregation). The Plaintiffs contend, however, that despite this data, including a BOP study which
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detailed the mismanagement of mental illness in restrictive housing facilities, including the restrictive housing facility at USP Lewisburg, the BOP still assigns prisoners, who suffer from mental illness, to USP Lewisburg and denies such prisoners even minimally appropriate mental health care. See id. at ¶¶ 39-56.
In addition, the Plaintiffs allege that up until recently, most prisoners in the SMU at USP Lewisburg were held in double-cell solitary conditions, due to overcrowding. Id. at ¶ 51. This means that two prisoners would share an eight by eleven foot cell. See id. As explained by Plaintiffs, however, evidence suggests that double-cell solitary confinement, as is utilized at USP Lewisburg, can be even worse than traditional single-cell solitary for individuals suffering from mental illness. Id. at ¶ 52. In support, Plaintiffs assert that the frustration and anger, which the prisoners experience from being placed in solitary confinement conditions, is intensified by having to deal with another prisoner’s idiosyncrasies, especially if one or both individuals are mentally ill. See id. (stating that the “cells are more cramped, each man’s movements are more restricted, and there is an acute fear of the stranger in the cell.”). Thus, the Plaintiffs claim, prisoners “held in double-cell solitary conditions are stuck with the worst of both worlds[,]” as most of the prisoners in the SMU “are locked in isolation for at least 23 hours per day, denying them human interaction and programming offered to others housed in a general population environment in a high security penitentiary[,] while at the
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same time forcing them to share a space never intended to house two people.” Id. at ¶ 53; see also id. at ¶ 55 (discussing the dangers of double-cell solitary confinement, and stating that “[s]ince 2010, at least four men at USP Lewisburg have been killed by their cell mate.”).
3. The BOP’s Alleged Violation of the United States Constitution and the BOP’s Alleged Failure to Adhere to Its Own Policies Regarding the Evaluation and Treatment of the Mentally Ill.
a. Inadequate Screening of Prisoners’ Mental Illnesses. The Plaintiffs claim that there is inadequate screening of the prisoners’ mental illnesses in order to determine their suitability for confinement in an SMU facility. See id. at ¶¶ 57-61. In support, the Plaintiffs explain that the BOP’s written policies require that prisoners, who are being referred to an SMU for extended placement, must be reviewed by Psychology Services staff in order to determine if they have any mental health issues, which would preclude them from placement in the SMU. Id. at ¶ 57. And then, once men are assigned to restrictive housing (i.e., the SMU), BOP Policy mandates “an initial psychological review . . . on or before the 30th calendar day of consecutive confinement in restrictive housing.” Id. at ¶ 59. In addition, the BOP’s policies also require an intake screening for all prisoners who are entering a BOP institution. Id. at ¶ 58. Per BOP Policy, this requires a Health Services screening within 24 hours of arriving at the institution
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and instructs Health Services staff to interview prisoners and observe them for any indicators of mental illness. Id. If staff members observe any such indicators, then they must refer the prisoner to Psychology Services for prompt evaluation by a psychologist. Id.
The Plaintiffs allege, however, that despite these policies, the BOP routinely places prisoners, who are suffering from serious mental illness, in the SMU at USP Lewisburg, thereby ignoring the previous diagnoses and failing to conduct the mandated psychological screenings. Id. at ¶ 60. Plaintiffs similarly allege that incoming prisoners do not receive the psychological evaluations required by BOP Policies and, instead, upon arrival, they only receive perfunctory interviews, which do not adequately serve as a diagnosis of mental illness or a screening of suitability for confinement in an SMU facility. See id. at ¶ 61 (explaining that the interviews last approximately ten minutes, and are conducted by a “member of USP Lewisburg’s general medical staff[,] who does not specialize in psychology or psychiatry and who does not administer an evaluation that conforms with contemporary community standards used by mental health professionals to evaluate and diagnose patients with mental illnesses”).
b. Insufficient Mental Health Staffing. Plaintiffs also claim that there is insufficient mental health staffing at USP Lewisburg. See id. at ¶¶ 62-66. In support, Plaintiffs assert that, per BOP Policies,
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all BOP institutions are expected to provide services to prisoners suffering from mental illness, and the Psychology Services and Health Services departments are expected to ensure that every prisoner with a clinically identified need for psychological treatment has access to mental healthcare. Id. at ¶ 62. As alleged by the Plaintiffs however, the mental health staffing at USP Lewisburg is not adequate to meet the expectations that are set forth in the BOP’s own policies. Id. at ¶ 63. For instance, the Plaintiffs contend that, at the time they filed this action, there were only five (or fewer) psychologists on staff at USP Lewisburg and that those five psychologists were responsible for the mental health of approximately all 1,089 prisoners at USP Lewisburg. Id. Along those same lines, the Plaintiffs assert that when prisoners are experiencing mental health emergencies, they are to notify any USP Lewisburg staff member that they need to speak with psychology staff. Id. But those prisoners rarely report, if ever, having had the opportunity to actually speak in private with such psychology staff. Id.
In addition, there is no psychiatrist on staff at USP Lewisburg. Id. at ¶ 65. “In the event of complex mental health and psychiatric medication needs, USP Lewisburg is supposed to rely on the ‘Tele-health program’ (also commonly called ‘tele-psych’)—which utilizes an audiovisual interface to connect men at USP Lewisburg with a consulting psychiatrist located at the United States Medical Center for Federal Prisoners . . . in Springfield, Missouri.” Id. The Plaintiffs
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claim, however, never being offered the opportunity to speak with a psychiatrist via tele-psych. Id.
c. Lack of Adequate Mental Health Treatment. In addition, Plaintiffs claim that, despite the BOP’s seemingly expansive policies regarding its commitment to adequate mental health treatment, the BOP has failed, in practice, to develop meaningful treatment plans for, and deliver adequate mental health services to, prisoners at USP Lewisburg who are suffering from mental illness. See id. at ¶¶ 67-75; see also id. at ¶ 75 (stating that the BOP has failed to provide, among other things, access to psychiatry services, crisis counseling, and mental health medication). In a similar vein, the Plaintiffs claim that, although the BOP’s Mental Illness Program Statement details the mental health care levels recognized by the BOP, the staff at USP Lewisburg routinely ignore this policy when classifying the mental health care levels of prisoners in the SMU, which in turn, has a significant impact on the mental health services they receive. See id. at ¶ 77-79; see also id. at ¶ 69 (outlining those levels as CARE1-MH, CARE2-MH, CARE3-MH, CARE4-MH). The Plaintiffs also claim that the psychology staff at USP Lewisburg deny prisoners their previously prescribed mental health medication. Id. at ¶ 82. In support, they state that prisoners, who were previously diagnosed with mental illness by the BOP and prescribed medication at other BOP facilities, are routinely
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taken of that medication when arriving at USP Lewisburg. Id. And, although the prisoners attempt to gain access to more meaningful mental health treatment by submitting “cop-outs, medical requests, and grievances[,]” their requests are denied. Id. at ¶ 83; see also id. at ¶ 84 (stating that these prisoners are instead provided with “games and puzzles” as a means of treatment).
In addition to claiming that there is a lack of adequate mental health treatment at USP Lewisburg, the Plaintiffs also assert that they are simultaneously subjected to harsh disciplinary practices, such as four pointing, for having incidents resulting from their untreated mental health issues. Id. at ¶ 85. As explained by the Plaintiffs, “[f]our-pointing involves chaining men by the wrists and ankles in either a prone or supine position on top of a concrete platform for several hours and often for many days.” Id. While chained, the prisoners are, at times, denied basic nutrition and may be left to urinate and defecate on themselves. Id.
d. Continued Housing of Mentally Ill Individuals in the SMU at USP Lewisburg. The Plaintiffs allege that despite the BOP’s August 9, 2016 Program Statement on Special Management Units, which states that a prisoner may be removed from the SMU program if it becomes evident that his mental health does not reasonably allow him to complete the program, prisoners (including the named Plaintiffs) who have mental illness and serious mental illness have been confined in the SMU at USP Lewisburg for months or years without adequate mental health
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treatment. Id. at ¶¶ 88-89. Moreover, many of the prisoners who are suffering from serious mental illness are unable to complete the SMU program. Id. at ¶ 90. But, even when those prisoners are given a classification of “SMU-FAIL,” it does not guarantee that they will be removed from the SMU. Id.
4. The Defendants’ Alleged Deliberate Indifference to the Plight and Needs of Prisoners with Mental Illness at USP Lewisburg. The Plaintiffs claim that the Defendants have actual knowledge of the unmet mental health needs of the named Plaintiffs, as well as the other class members, but have and continue to demonstrate deliberate indifference to those needs. See id. at ¶ 91. In support, the Plaintiffs allege that the Defendants’ knowledge derives from a variety of sources, including: the medical records of the named Plaintiffs and other class members; direct observation of the obvious mental illness of the named Plaintiffs and other class members; the suicides, as well as the attempted suicides, by prisoners suffering from mental illnesses; and the evidence provided by other prisoners at USP Lewisburg during prior litigation, which challenged the mental health system at USP Lewisburg. Id. ¶ 92; see also id. at ¶¶ 95-97 (stating that, since 2013, there have been at least six lawsuits filed against various officials at USP Lewisburg, alleging, either in whole or in part, constitutionally inadequate treatment for mental illness, and providing details in support thereof). But, despite the Defendants having actual knowledge of the concerns surrounding the
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prisoners’ mental illnesses, the BOP has allegedly failed to address these concerns, thereby showing deliberate indifference to the prisoners’ needs. Id. at ¶ 98.
5. Allegations Concerning Named Plaintiff McCreary. McCreary, who is scheduled for release in October of 2027, has been diagnosed with bipolar disorder and schizophrenia both prior to and during his incarceration. Id. at ¶¶ 101-02. And, more specifically, the BOP itself has diagnosed McCreary with depression, mood disorder, psycho-social and environmental problems, ADHD, and antisocial personality disorder. Id. at ¶ 102. Between 2008 and 2010, McCreary was incarcerated at three different BOP facilities, and at all of these facilities, he received regular, psychological treatment, including out-of-cell counseling, tele-psych access, and prescription medication. Id. at ¶ 108. In or around October of 2010, the BOP transferred McCreary to USP Lewisburg. Id. at ¶ 109. While there, the BOP initially treated McCreary’s mental health issues with Depakote and Remeron. Id. But, in late 2011 or early 2012, the BOP changed McCreary’s medication to the injectable form of Risperdal, a drug used to treat schizophrenia and bipolar disorder. Id. As alleged by the Plaintiffs, however, McCreary was afraid of the injection and refused to take the medication. Id. The BOP did not offer him the oral form of Risperdal or any other alternative medication for his mental health issues. Id.
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In or around May of 2013, the BOP transferred McCreary to USP Florence, where they provided him with regular access to tele-psych, as well as prescription medication. Id. at ¶ 110. Then, in or around March of 2014, they transferred him back to USP Lewisburg. Id. at ¶ 111. At the time he was transferred back, McCreary was taking Celexa, which the BOP had prescribed him. Id. Moreover, during his intake interview, McCreary informed “Dr. Edinger” that he had attempted suicide at USP Florence and that he was experiencing suicidal thoughts and hearing voices. Id. In July of 2014, however, Dr. Edinger stopped McCreary’s Celexa prescription and denied him all other mental health medication. Id. at ¶ 112.
Plaintiffs allege that despite prior diagnoses of and prescription medication to treat his serious mental illness, McCreary “has received no mental health medication since returning to USP Lewisburg in 2014.” Id.; see also id. at ¶ 115 (alleging that since his return to USP Lewisburg, he has not had access to telepsych, despite his numerous requests). The Plaintiffs allege that what McCreary has instead received is inadequate cell-side conversations through the cell door, in full view of other prisoners. Id. at ¶ 113; see also id. (explaining that such public conversations not only fail to treat McCreary’s mental illness, but they also pose as a serious physical threat to his health because, if other prisoners learn of his mental health issues, then they are likely to assault and/or harass him since such issues are
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socially unacceptable or they are likely to fear him due to him having such issues); id. at ¶ 114 (alleging that an SMU psychologist at USP Lewisburg only provided McCreary with a five minute conversation in prison showers, and asked if he wanted a packet, containing the puzzles and cartoons). In addition, the Plaintiffs allege that despite the fact that the BOP Central Office has determined that McCreary’s mental illness is too severe to transfer him to the Administrative Maximum Facility at USP Florence, and has thus designated him to the STAGES program at USP Florence, the BOP still houses him at USP Lewisburg and still refuses to prescribe him any medication. Id. at ¶ 116.
More recently in May of 2017, McCreary attempted to hang himself and was placed on suicide watch for five days. Id. at ¶ 118. He is now in an “ADX cell,” which has two doors at its entrance—one is a solid steel door and the other is a grated door. Id. This cell is removed from all other prisoners, leaving McCreary in complete isolation, where he cannot be heard by anyone. Id. And, although on May 8, 2017, McCreary’s mental health classification “was upgraded to CARE3MH,” the Plaintiffs contend that Dr. Edinger still informed McCreary that he does not need medication. Id. at ¶ 120. The Plaintiffs also contend that even though McCreary is receiving weekly therapy, this “therapy” only consists of a brief conversation behind the cell door during which McCreary must yell in order to be
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heard. Id. at ¶ 119. Finally, while McCreary has made numerous requests for proper mental health treatment, his requests have been rejected. See id. at ¶ 121.
6. Allegations Concerning Named Plaintiff Anamanya. Anamanya, who is scheduled for release in November of 2037, has received several diagnoses of mental illness and other mental health concerns, both inside and outside of the correctional system, including major depressive disorder, clinical depression, chronic depression, mood disorder, antisocial personality disorder, psycho-social and environmental stressors, seizure disorder, and substance abuse. Id. at ¶¶ 122-24, 127; see also id. at ¶ 128 (stating that after his criminal defense attorney requested a second competency-to-stand-trial evaluation, the psychologist who conducted the evaluation concluded that the diagnosis for Anamanya is “most likely” Shizoaffective Disorder). From approximately July of 2006 to January of 2007, Anamanya was incarcerated at USP Atlanta, where he was diagnosed with mood disorder and antisocial personality disorder. Id. at ¶ 129. And, although he did not receive therapy, he was prescribed medication. Id. From approximately May of 2009 to 2011, Anamanya was incarcerated at USP Lewisburg for the first time. Id. at ¶ 130. During a portion of this time period, he received individual counseling twice a week and was prescribed Depakene and Risperdal. Id. at ¶ 130. And, between the end of 2011 and 2015, Anamanya “was housed at four different BOP
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facilities.” Id. at ¶ 131. Throughout his incarceration at these different facilities, Anamanya was diagnosed with antisocial personality disorder, adjustment disorder, depressive disorder, and anxiety disorder. Id. And, at all of these facilities, he was prescribed mental health medication, including Haldol, Prozac, Zoloft, and Buspar. Id.; see also id. at ¶ 132 (stating that while he was incarcerated at USP Big Sandy, Anamanya also received a suicide risk assessment, a behavioral management plan, and individual therapy and counseling).
Then, on or around August 10, 2015, Anamanya was transferred back to USP Lewisburg. Id. ¶ 133. He did not receive a “mental health evaluation” upon arrival. Id.; but see id. at ¶ 134 (stating that, upon arrival, Anamanya received an “evaluation” from Dr. Edinger, who, Plaintiffs contend, is not a psychologist). Roughly a month later, on September 11, 2015, Dr. Edinger discontinued Anamanya’s mental health medication with no explanation other than he no longer needed it. Id. at ¶ 135. Following Anamanya’s filing of a grievance, however, Dr. Edinger ultimately re-prescribed Anamanya mental health medication. Id. at ¶ 136. At various points, Anamaya was prescribed Zoloft and Citalopram. Id. But, on or around December 9, 2015, Anamaya’s medication was discontinued, and he has not received any medication since then. Id. at ¶ 137.
In addition, since being incarcerated at USP Lewisburg, Anamanya has not received adequate therapy or counseling for his mental health issues. Id. at ¶ 138.
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The only treatment he has received is the inadequate, cell-side conversations in full view of other men, and the packets, which contain the crossword puzzles and the colorable cartoons. Id. at ¶ 139. Anamanya has also “never seen the tele-psych despite numerous requests to do so.” Id. at ¶ 140.
Moreover, Anamanya has attempted to take his own life three times since arriving at USP Lewisburg, and he has had several suicide risk assessments, but has never been placed on suicide watch. Id. Anamanya has also repeatedly been placed into four-point restraints for expressing suicidal thoughts and for exhibiting behavioral issues, which are attributable to his untreated mental health illness. Id. In fact, as recently as March of 2017, Anamanya had asked for treatment, since he was still having suicidal thoughts and starting to hear voices, but he has yet to receive such treatment. Id. at ¶ 142. And, even though Anamanya has sought administrative relief regarding his mental health issues, his requests have been rejected. Id. at ¶¶ 143-44.
7. Allegations Concerning Named Plaintiff Coppola. Coppola, who, at the time the complaint was filed, was scheduled for release on January 26, 2018,4 has been diagnosed with bipolar disorder. Id. at ¶¶ 145-46; see also id. at ¶¶ 149-50 (alleging that prior records suggest a history of schizophrenia and anxiety, as well as depression and bipolar disorder); id. at ¶ 153
4 It is unclear whether Coppola has, in fact, been released. 22

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(stating that during his incarceration at USP Hazelton, Coppola received a “Medication Review[,]” and the psychologist who conducted that review noted that Coppola had an “[o]ld dx of bi-polar that may be incorrect, but he is similar to BiPolar II.”).
From the time period of 2005 to 2013, Coppola was incarcerated at 10 different BOP institutions. Id. at ¶ 153. The Plaintiffs allege that he was transferred several times due to episodes relating to his mental health disorder. Id. Throughout his incarceration, Coppola has made over 80 requests (including 25 at USP Lewisburg), wherein he sought treatment for his bipolar disorder. Id. at ¶ 155. Per Coppola, this lack of treatment has triggered extreme mood swings, worsened his bipolar disorder, and resulted in his loss of over two years of good time. Id.
Coppola arrived at USP Lewisburg on August 17, 2015, to begin Level 1 of the SMU program. Id. at ¶ 156. He did not, however, meet with a psychologist when he arrived at USP Lewisburg. Id. And, since arriving there, he has not received a single mental health evaluation, and his treatment request forms have been denied or ignored. Id. at ¶ 157. Instead, he has only received cell-side conversations that last a matter of seconds. Id. The Plaintiffs allege however, that Coppola’s “fears of tortures and beatings” prevent him from announcing his mental health issues to a Psychology Staff member walking by the other side of his cell
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door, since prison staff and other prisoners can easily overhear the conversation. Id.
When Coppola arrived at USP Lewisburg, he was receiving Gabapentin for his sciatica, but was taken off of this medication on or around March 3, 2016, by Dr. Kevin Pigos, and did not receive a replacement until roughly December 15, 2016, when Dr. Edinger prescribed him Duloxetine. Id. at ¶ 158. In July of 2016, Coppola submitted a request for treatment of his bipolar disorder. Id. at ¶ 159. This request was rejected. Id. The rejection stated that Coppola’s only current diagnosis is antisocial personality disorder and that there was no evidence of a diagnosis of bipolar disorder during his incarceration. Id. The rejection also stated that if Coppola he was experiencing any specific symptoms, he could discuss those symptoms with a psychologist during unit rounds. Id. But, per Coppola’s own experience, such discussions were unproductive. Id.
On August 17, 2016, Coppola signed a form, which indicated that he had completed the SMU program. Id. at ¶ 160. Shortly thereafter, however, on August 28, 2016, Coppola was involved in a disciplinary incident that resulted in his placement in restraints for 22 hours. Id. Coppola still has marks on his wrists from this incident. Id. Although Coppola filed a misconduct charge over this incident, that charge was rejected at every level. Id. As a form of punishment for this incident and for filing the misconduct charge, Coppola lost good time and was
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notified that his completion of the SMU program had been “canceled.” Id. After this incident, Coppola withdrew a lawsuit that he had filed against the BOP because he did not want to be subjected to any further retaliation. Id.
On or around February 15, 2017, Coppola received an 18-month SMU evaluation from “Dr. Enigk.” Id. at ¶ 161. This review took place in the shower and, per Coppola, Dr. Enigk was relying on a checklist to conduct this evaluation and did not provide Coppola with any substantive treatment. Id. This review also stated that Coppola’s only diagnosis was antisocial personality disorder. Id.
Thus, the Plaintiffs allege, Coppola, despite having received a clear diagnosis of bipolar disorder in 1990, has never received this diagnosis from the prison system and has likewise never received treatment or medication for this disorder. Id. at ¶ 162. The Plaintiffs further allege that Coppola has also never received treatment for his diagnosis of antisocial personality disorder. Id.
8. Class Action Allegations. Finally, Plaintiffs assert that they bring this lawsuit on behalf of themselves and on behalf of all other persons similarly situated. Id. at ¶ 163. In support, they assert the following class of individuals:
All persons who were, as of the filing of the complaint in this case, or are now, or will be in the future, confined to the custody of [USP Lewisburg] and suffer from a Serious Mental Illness or a Mental Illness, requiring treatment under one or more of the BOP’s CARE levels as set forth in Program Statement 5310.16 (May 1, 2014).
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Id. at ¶ 164. 9. Claim for Relief.
In connection with all of these allegations, the Plaintiffs allege a violation of the Eighth Amendment to the United States Constitution. In support, they contend that the “Defendants’ policies, practices, and procedures systemically violate the Eighth Amendment rights of individuals with mental illness.” Id. at ¶ 169. They also contend that the “Defendants know or are deliberately indifferent to the fact that the numerous individuals who have been diagnosed as having serious mental illness are placed in the SMU for extensive time periods and that confinement in the SMU creates a substantial risk that those individuals’ mental illnesses will be exacerbated and that their mental health will deteriorate. Defendants also know or are deliberately indifferent to the fact that the mental health treatment provided to individuals with mental illness in SMU is inadequate and results in the exacerbation or unnecessary prolongation of individuals’ mental illnesses.” Id. at ¶ 170. Finally, they contend that the negative consequences of long-term isolation in the SMU has been brought to the Defendants’ attention, but that they have refused to correct “this systemic violation” of the prisoners’ rights. Id. at ¶ 171.
As for relief, the Plaintiffs seek declaratory and injunctive relief to stop the constitutional violations described in their complaint and to ensure that the prisoners housed in the SMU at USP Lewisburg receive constitutionally adequate
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mental health care. Id. at ¶ 174. They also seek an award of reasonable attorneys’ fees, litigation expenses, and costs. Id. at ¶ 175.
B. Legal Standard. In accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). When reviewing a motion to dismiss, “[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer, 605 F.3d at 229. In making that determination, we “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff’s] claims are based upon these documents.” Id. at 230. “A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F. Supp. 2d 762, 769–70 (M.D. Pa. 2012). “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the plaintiff’s claim is and of the grounds upon which
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it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than labels, conclusions, and a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the plaintiff’s entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has to “show” such an entitlement with its facts.” Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court must accept as true all well-pleaded factual allegations in the complaint, and the court must draw all reasonable inferences from the facts alleged in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O’Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). But a court “need not credit a complaint’s bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere
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speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679). C. Discussion. In support of their motion to dismiss, the Defendants raise the following arguments: (1) that the Court dismiss Director Kane and Warden Ebbert from the complaint because the Plaintiffs have failed to allege the personal involvement of these individual Defendants in the alleged constitutional deprivations; (2) that the Court should dismiss the Plaintiffs’ claims regarding the prison disciplinary system pursuant to the favorable termination rule; (3) that the Court should dismiss the Plaintiffs’ conditions of confinement claims for failure to state claims upon which relief can be granted; and finally (4) that the Court should dismiss the Plaintiffs medical care claims for failure to state claims upon which relief can be granted. See doc. 29 at 10. We address each of these arguments in turn.
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1. Personal Involvement of Director Kane and Warden Ebbert. Initially, the Defendants contend that Director Kane and Warden Ebbert should be dismissed from the complaint because the Plaintiffs have failed to set forth facts, which would show that these defendants were personally involved in the alleged constitutional deprivations. Doc. 29 at 13. More specifically, the Defendants argue that the doctrine of respondeat superior cannot form the basis of a plaintiff’s constitutional claim and, for that reason, each named defendant in a civil rights action must be shown, via the allegations in the complaint, to have been personally involved in the events or occurrences that underlie the plaintiff’s claims. Id. Thus, the Defendants contend that because Director Kane and Warden Ebbert, apart from being identified in the section of the complaint titled “Parties,” are not meaningfully mentioned or discussed thereafter, they should be dismissed from the complaint due to their lack of personal involvement in the alleged constitutional violations. Id. at 14-15. The Plaintiffs contend, however, that the Court should deny the Defendants’ motion on this basis, arguing that their complaint contains sufficient facts to show that Director Kane and Warden Ebbert were personally involved in the alleged constitutional deprivations. Doc. 38 at 22. In support, the Plaintiffs argue that the Defendants’ contention—that neither Director Kane nor Warden Ebbert are mentioned or discussed throughout the complaint—is misleading, as the complaint
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refers to all “Defendants.” Id. at 23-24. The Plaintiffs also argue that they are not seeking money damages, as suggested by Defendants, but instead are seeking declaratory and injunctive relief under the Eighth Amendment to the United States Constitution.5 Id. at 24-25. The Plaintiffs finally argue, that Director Kane and Warden Ebbert are the individuals who exercise ultimate control over the SMU, as well as the designation of prisoners who are sent to the SMU, including those suffering from mental illness, and thus were (and presumably are) ultimately responsible for the prisoners’ health and safety in the SMU. Id. at 24.
Having reviewed the parties’ arguments and the relevant case law, we conclude that the Defendants’ motion to dismiss Director Kane and Warden Ebbert from the complaint should be denied. Even if we were to conclude that the complaint fails to allege the personal involvement of Director Kane and Warden Ebbert in the past constitutional violations, as is argued by the Defendants, this does not preclude the Plaintiffs from obtaining declaratory relief or injunctive relief for ongoing constitutional violations. See Parkell v. Danberg, 833 F.3d 313, 332 (3d Cir. 2016) (“Parkell”) (concluding that that, although the state defendants lacked personal involvement in the past constitutional violations, this did not preclude the plaintiff from obtaining prospective injunctive relief for ongoing
5 The Plaintiffs oppose the Defendants’ characterization that their complaint has been filed under either Bivens or the Administrative Procedure Act. See doc. 38 at 14 n.3, 24-25.
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violations). And, in this regard, the complaint is clear that the Plaintiffs are only
seeking declaratory and injunctive relief to end the alleged constitutional violations
and to ensure that prisoners confined in the SMU at USP Lewisburg receive
constitutionally adequate mental health care. Doc. 1 at ¶ 174.
In seeking such relief, the Plaintiffs are required to name defendants who are
ultimately responsible for ensuring that the requested relief is carried out. See
Parkell, 833 F.3d at 332 (stating that the plaintiff, in seeking prospective injunctive
relief, was required to name an official or officials who can respond to or otherwise
ensure that the relief is carried out (citing Hartmann v. Cal. Dep’t of Corr. &
Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013), and Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (per curiam));6 see also Knight First Amendment Inst. at
Columbia Univ. v. Trump, No. 17 5205, 2018 WL 2327290, at *9 (S.D.N.Y. May
23, 2018) (“Knight First”) (“[T]he Second Circuit and several other Courts of
Appeals have recognized that in cases seeking prospective relief, an official
6 In Gonzalez, the United States Court of Appeals for the Seventh Circuit observed that the plaintiff had not alleged any specific involvement by the then-Warden in the treatment of the plaintiff’s hernia. 663 F.3d at 315. The Seventh Circuit concluded, nevertheless, that the warden of the prison was a proper defendant since the plaintiff sought injunctive relief. Id. As explained by the Seventh Circuit, had the plaintiff only sought damages, then the warden’s lack of personal involvement would be conclusive. Id. Since, however, the plaintiff sought injunctive relief it was irrelevant whether the warden had participated in the alleged wrongdoing. Id. Thus, the Court of Appeals substituted the prison’s current warden as a defendant, since he was the individual responsible for ensuring that any injunctive relief would be carried out. Id.
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defendant’s lack of personal involvement in past constitutional violations does not render that defendant an improper one for purposes of prospective declaratory or injunctive relief from continuing violations—provided that the defendant maintains some connection to, or responsibility for, the continuing violation.” (emphasis in original) (collecting cases, including Parkell)). And here, there is no allegation or suggestion that the Director of the BOP or the Warden of USP Lewisburg (or their successors) would not be the appropriate defendants to ensure that the Plaintiffs’ requested relief is carried out. Thus, we recommend denying the Defendants’ motion to dismiss Director Kane and Warden Ebbert from the complaint on the basis that they lack personal involvement in the alleged constitutional deprivations.
Before moving on to the Defendants’ next argument, we acknowledge the following point of contention between the parties: although Director Kane was serving as the Acting Director of the BOP at the time the complaint was filed, he was not severing as the Director or even the Acting Director at the time of the alleged events. See doc. 38 at 23 n. 7 (citing doc. 29 at 14 n.2). This point of contention, however, is of little import. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Director Kane’s successor, Mark S. Inch, is automatically substituted as a defendant. See FED. R. CIV. P. 25(d); see also doc. 29 at 14 n.2 (stating that Mark S. Inch was sworn in as the Director on September
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18, 2017). Thus, we recommend directing the Clerk of Court to substitute Mark S. Inch for Director Kane.
2. Favorable Termination Rule. Next, the Defendants argue that to the extent the Plaintiffs are attempting to challenge the validity of their underlying disciplinary proceedings, their challenge is barred by the favorable termination rule, which was announced by the United States Supreme Court in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Doc. 29 at 15. In Heck, the United States Supreme Court held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a Section 1983 plaintiff must prove 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 [a] determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486-87, 490 (footnote omitted). “Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id.
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The rationale in Heck was based, in part, on a desire to avoid parallel litigation over the issues of probable cause and guilt, to prevent the creation of two conflicting resolutions arising out of the same transaction, and to preclude a convicted criminal defendant from collaterally attacking a conviction through a civil suit. Royal v. Durison, 254 F. App’x 163, 165 (3d Cir. 2007). Even if the plaintiff has exhausted available state remedies, his § 1983 cause of action is deferred unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus. Heck, 512 U.S. at 489.
The United States Supreme Court has since extended the rationale of Heck to disciplinary proceedings. In Edwards v. Balisok, the Supreme Court addressed the “question whether a claim for damages and declaratory relief brought by a state prisoner challenging the validity of the procedures used to deprive him of goodtime credits is cognizable under § 1983.” 520 U.S. 641, 643 (1997). There, the inmate argued that the procedures used in a prison disciplinary proceeding that resulted in the loss of good-time credits violated due process. Id. Claiming that the procedures used were wrong, but not necessarily that the result reached was wrong, the prisoner sought declaratory and injunctive relief as well as compensatory and punitive damages. Id. at 643, 645. “The Court acknowledged that it was ‘clearly established in our case law’ that a plaintiff is entitled to nominal
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damages in a § 1983 action where the plaintiff proves ‘that the procedures were wrong’ but ‘not necessarily that the result was.’” Harris v. Ricci, 595 F. App’x 128, 132 (3d Cir. 2014) (citing Balisok, 520 U.S. at 645). The Court nevertheless extended the rationale of Heck to prison disciplinary proceedings resulting in the loss of good-time credits and held that where “the nature of the challenge to the procedures” “necessarily imply the invalidity of the punishment imposed,” a claim under § 1983 is not cognizable. Balisok, 520 U.S. at 645, 648.
“[A] state prisoner’s §1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of the confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). The reasoning of Heck and Balisok has been applied to federal prisoners’ Bivens claims. See Lora-Pena v. F.B.I., 529 F.3d 503, 506 n.2 (3d Cir. 2008) (“Although Heck involved a § 1983 action by a state prisoner, the reasoning in Heck has been applied to bar Bivens claims.”); Turner v. Tuttle, No. CV 3:160269, 2017 WL 1086185, at *7 n.3 (M.D. Pa. Mar. 20, 2017) (“While Heck, and
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Balisok all involved § 1983 cases, courts have extended their holdings to Bivens actions.”).7
Here, the Plaintiffs argue that, because the complaint does not raise any claims relating to the fact or duration of their confinement, their claims are not barred by the favorable termination rule of Heck. Doc. 38 at 25-26. Rather, the Plaintiffs contend, they are “simply point[ing] out that the systemic denial of constitutionally adequate mental healthcare at times results in additional disciplinary procedures.” Id. at 26 (citing doc. 1 at ¶ 11). The Defendants argue, however, that these assertions are inconsistent with the Plaintiffs’ claim for relief
in the complaint. Doc. 48 at 7. That claim for relief provides, in material part, as follows:
169. Defendants’ policies, practices, and procedures systemically violate the Eighth Amendment rights of individuals with mental illness. Such policies, practices and procedures include, without limitation:
* * * b. A disciplinary system that does not consider a prisoner’s serious mental illness and the impact of isolation in assessing whether to sanction the prisoner or, if so, the nature of the sanction[.]
Doc. 1 at ¶ 169(b).
7 Although Heck has historically been applied to § 1983 and Bivens actions, neither party has argued that it would not be applicable here in the context of an Eighth Amendment claim, seeking declaratory and injunctive relief.
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In connection with the Plaintiffs’ claim for relief, the Defendants explain that one of the available sanctions in the BOP’s prisoner disciplinary system is the loss of good conduct time, which the Defendants argue, necessarily relates to the duration of a prisoner’s confinement. Doc. 48 at 7. In fact, the Defendants argue, named Plaintiff Coppola alleges in the complaint that he has lost over two years of good conduct time as a result of the alleged lack of mental health treatment at USP Lewisburg. Id. at 7-8 (citing doc. 1 at ¶ 155). Thus, the Defendants contend that the Plaintiffs’ challenged action relates directly to the duration of Coppola’s confinement and not just the conditions thereof. Id. at 8.
Having reviewed the parties’ arguments, the allegations in the complaint, and the relevant case law, we conclude that it is unclear whether the complaint is, in fact, challenging the fact or duration of the Plaintiffs’ confinement, or whether it is merely challenging the conditions thereof, such that a finding in the Plaintiffs’ favor would not alter their sentence or undo their conviction. More specifically, we conclude that there are times in the complaint when the Plaintiffs do not seem to be challenging the duration of their sentence. For instance, there are times when the Plaintiffs are simply providing context to the alleged fact that untreated mental health issues can lead to disciplinary issues for prisoners who need treatment or medication to help control their behavior (see, e.g., doc. 1 at ¶ 11), and there are times when the Plaintiffs are merely attempting to show that a prisoner’s
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confinement in isolation combined with the harsh disciplinary practices (such as
four pointing) pose a substantial risk to that prisoner’s mental health (see, e.g., id.
at ¶¶ 7, 85).
There are other times in the complaint, however, when it appears that the
Plaintiffs may be challenging the duration of their sentence. More specifically, the
Plaintiffs claim that, as a result of the inadequate mental health treatment, Coppola
has received a loss of over two years of good conduct time. See, e.g., id. at ¶¶ 155,
160. In addition, and as noted by the Defendants, the Plaintiffs have explicitly
addressed the Defendants’ disciplinary system in the claim for relief section of the
complaint. See id. at ¶ 169(b).
Thus, against this background, we find it appropriate to reiterate the
teachings of the United States Court of Appeals for the Third Circuit:
A challenge, such as this one, to a disciplinary action that resulted in the loss of good-time credits, is properly brought pursuant to [28 U.S.C.] § 2241, as the action could affect the duration of the petitioner’s sentence. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (challenge that affects fact or duration of confinement must be brought in habeas petition); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001) (petition that challenges prison disciplinary sanction, including loss of good-time credits, is a challenge to execution of sentence properly brought under § 2241); McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir.1997) (same); see also Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 758-59 (3d Cir.1996) (entertaining, without discussion of propriety of the vehicle, prisoner’s challenge to loss of good time credits following disciplinary proceeding brought pursuant to § 2241).
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Queen v. Miner, 530 F.3d 253, 254 n.2 (3d Cir. 2008) (“Queen”); see also Solomon v. Warden, FCI Fairton, 506 F. App’x 147, 148-49 (3d Cir. 2012) (“A challenge to a disciplinary action resulting in the loss of good conduct time is properly brought pursuant to § 2241, ‘as the action could affect the duration of the petitioner’s sentence.’” (citing Queen, 530 F.3d at 254 n.2)).
Accordingly, because it is unclear to the Court whether the Plaintiffs are, in fact, challenging actions that would affect the duration of one or all of their sentences, we recommend that the Plaintiffs be instructed to amend their complaint, so that they can clarify the precise contours of their Eighth Amendment claim as it relates to their allegations concerning the Defendants’ disciplinary action at USP Lewisburg. Given this recommendation, we conclude that the Defendants’ motion to dismiss, on the basis of the favorable termination rule, should be denied at this time.
3. Conditions of Confinement Claims. In addition, the Defendants contend that the Court should dismiss the Plaintiffs’ Eighth Amendment conditions of confinement claims for failure to state claims upon which relief can be granted. Doc. 29 at 16. In support thereof, the Defendants argue that the complaint is riddled with sweeping and generalized allegations regarding the conditions of the Plaintiffs’ confinement at USP Lewisburg. Id. The Plaintiffs, however, have not separately addressed this
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argument; instead, they have only addressed the Defendants’ arguments regarding their Eighth Amendment claim for deliberate indifference to their serious medical needs. Compare doc. 29 at 16-18 (raising arguments as to the Plaintiffs’ alleged conditions of confinement claims) with doc. 38 at 26-48 (addressing the Defendants’ arguments as they pertain to the Plaintiffs’ medical care claims).
Although we tend to agree with the Defendants that there are allegations throughout the complaint, which pertain to the Plaintiffs’ conditions of confinement at USP Lewisburg, it does not appear that the Plaintiffs are actually raising a separate Eighth Amendment claim based upon those conditions. See doc. 1 at 54 (titling the Eighth Amendment claim as one for “Failure to Treat”). Rather, it appears that the Plaintiffs are only making such allegations in order to show the Defendants’ deliberate indifference to their serious mental health needs. See doc. 38 at 27-28 (containing the Plaintiffs’ brief in support, wherein they explain that in the context of inadequate mental healthcare, courts have found that subjecting prisoners, who are suffering from mental illness, to the harsh conditions of solitary confinement may support allegations of deliberate indifference).
Thus, because it does not appear that the Plaintiffs are actually raising an Eighth Amendment conditions of confinement claim, we recommend denying the Defendants’ motion on this basis. To the extent, however, that the Plaintiffs find themselves inclined to file objections, arguing that they are, in fact, asserting a
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conditions of confinement claim, then we recommend that the Plaintiffs be instructed to more clearly define that claim in an amended complaint.
4. Eighth Amendment Medical Care Claims. The final argument the Defendants raise in their motion to dismiss is that the Plaintiffs’ Eighth Amendment medical care claims should be dismissed from the complaint for failure to state claims upon which relief can be granted. Doc. 29 at 19. In order for the Plaintiffs to allege a viable Eighth Amendment medical care claim, they must allege facts from which it can reasonably be inferred that the Defendants acted with deliberate indifference to their serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). This is a two-part inquiry: the Plaintiffs must make a subjective showing that the Defendants were deliberately indifferent to their medical needs, as well as an objective showing that those medical needs were serious. Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). A medical need is serious if it “has been diagnosed by a physician as requiring treatment” or if it “is so obvious that a lay person would easily recognize the necessity for a doctor’s attention.” Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F. Supp. 456, 458 (D.N.J. 1979), aff’d, 649 F.2d 860 (3d Cir. 1981) (table)). Additionally, “if ‘unnecessary and wanton infliction of pain’ results as a
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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. (quoting Estelle, 429 U.S. at 103). Further, “where denial or delay causes an inmate to suffer a life-long handicap or permanent loss, the medical need is considered serious.” Id.
Deliberate indifference is a subjective standard. Farmer v. Brennan, 511 U.S. 825, 840 (1994). “To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009). Thus, the prison official must have known of the substantial risk of serious harm and must have disregarded that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 837. In other words, “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.” Id.
The mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as a constitutional claim because medical malpractice is not a constitutional violation. See Farmer, 511 U.S. at 835 (holding that “deliberate indifference describes a state of mind more blameworthy than negligence”); Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (“Allegations of medical malpractice are not sufficient to establish a Constitutional
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violation.”); Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 192 n. 2 (3d Cir. 2002) (claims of medical malpractice, absent evidence of a culpable state of mind, do not constitute deliberate indifference under the Eighth Amendment). Instead, deliberate indifference represents a much higher standard, one that requires “obduracy and wantonness, which has been likened to conduct that includes recklessness or a conscious disregard of a serious risk.” Rouse, 182 F.3d at 197 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
“Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.” Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (citations omitted). And courts will “disavow any attempt to second guess the propriety or adequacy of a particular course of treatment . . . (which) remains a question of sound professional judgment.” Spencer v. Courtier, 552 F. App’x 121, 124 (3d Cir. 2014) (quoting Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)). “Mere disagreement as to the proper medical treatment does not support an Eighth Amendment claim.” Caldwell v. Luzerne Cnty. Corr. Facility Mgmt. Employees, 732 F. Supp. 2d 458, 472 (M.D. Pa. 2010). Thus, “[w]here a prisoner has received some amount of medical treatment, it is difficult to establish deliberate indifference, because prison officials are afforded considerable latitude in the diagnosis and treatment of prisoners.” Palakovic v. Wetzel, 854 F.3d 209, 227 (3d Cir. 2017). “Nonetheless, there are
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circumstances in which some care is provided yet it is insufficient to satisfy constitutional requirements.” Id.
The United States Court of Appeals for the Third Circuit has found deliberate indifference where a prison official: “(1) knows of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.” Rouse, 182 F.3d at 197. The Third Circuit has also found that “[n]eedless suffering resulting from the denial of simple medical care, which does not serve any penological purpose, . . . violates the Eighth Amendment.” Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003). “For instance, prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for ‘an easier and less efficacious treatment’ of the inmate’s condition.” Palakovic, 854 F.3d at 228 (quoting West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978). “Nor may ‘prison authorities deny reasonable requests for medical treatment . . . [when] such denial exposes the inmate to undue suffering or the threat of tangible residual injury.’” Id. (quoting Monmouth Cnty. Corr. Institutional Inmates, 834 F.2d at 346). Thus, “[a] ‘failure to provide adequate care . . . [that] was deliberate, and motivated by non-medical factors’ is actionable under the Eighth Amendment, but ‘inadequate care [that] was
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a result of an error in medical judgment’ is not.” Parkell v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016) (quoting Durmer, 991 F.2d at 69).
“[T]here is a critical distinction ‘between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.’” Pearson, 850 F.3d at 535 (quoting United States ex. rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). “Because ‘mere disagreement as to the proper medical treatment’ does not ‘support a claim of an eighth amendment violation,’ when medical care is provided, we presume that the treatment of a prisoner is proper absent evidence that it violates professional standards of care.” Id. (quoting Monmouth Cty. Corr. Inst., 834 F.2d at 346). And “there are two very distinct subcomponents to the deliberate indifference prong of an adequacy of care claim.” Id. at 536. “The first is the adequacy of the medical care—an objective inquiry where expert testimony could be helpful to the jury.” Id. “The second is the individual defendant’s state of mind—a subjective inquiry that can be proven circumstantially without expert testimony.” Id. But a claim that medical care was delayed or denied completely “must be approached differently than an adequacy of care claim.” Id. at 537. “Unlike the deliberate indifference prong of an adequacy of care claim (which involves both an objective and subjective inquiry), the deliberate indifference prong of a delay or denial of medical treatment claim involves only one subjective inquiry—since there is no
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presumption that the defendant acted properly, it lacks the objective, propriety of medical treatment, prong of an adequacy of care claim.” Id. “All that is needed is for the surrounding circumstances to be sufficient to permit a reasonable jury to find that the delay or denial was motivated by non-medical factors.” Id.
Here, in connection with these legal benchmarks, the Plaintiffs contend that the Defendants have not challenged whether the complaint alleges serious medical needs, stemming from the Plaintiffs’ mental illnesses. Doc. 38 at 30. Instead, the Plaintiffs contend, the Defendants’ challenge focuses on whether the Plaintiffs have sufficiently alleged that the Defendants were deliberately indifferent to those serious medical needs. Id. We are in accord with the Plaintiffs’ understanding of the Defendants’ motion and, thus, our discussion will be confined to whether the Plaintiffs have sufficiently alleged that the Defendants were deliberately indifferent to the Plaintiffs’ serious medical needs.
With respect to all of the named Plaintiffs, the Defendants essentially argue that the allegations in the complaint do nothing more than reflect the Plaintiffs’ disagreement with the adequacy of the treatment that they received at USP Lewisburg. See doc. 29 at 23-27, 35-37, 44-45. The Plaintiffs argue, however, that they have alleged facts from which it can be reasonably inferred that the Defendants acted with deliberate indifference to their serious mental health needs. See doc. 38 at 30-31. We agree with the Plaintiffs.
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Having thoroughly reviewed the complaint, we observe that it alleges the Defendants’ awareness of the Plaintiffs’ serious mental health needs. See, e.g., doc. 1 at ¶¶ 91-92, 102, 129, 153 (alleging that the BOP diagnosed or was otherwise aware of the Plaintiffs’ array of serious mental health issues). The complaint also alleges the Defendants’ awareness of the devastating effects that solitary confinement has on prisoners, especially those suffering from mental health issues. See, e.g., id. at ¶¶ 39, 46-50, 55 (alleging that the Defendants were and have been aware that the callous conditions of solitary confinement, and double-cell solitary confinement, can cause severe harm and psychological damage). In addition, the complaint avers that, despite this awareness, the Defendants provided the Plaintiffs with constitutionally deficient mental healthcare, and the Defendants subjected the Plaintiffs to extended periods of solitary confinement, ultimately leading to unnecessary suffering and the exasperation of their mental health issues. See, e.g., id. at ¶¶ 10-11, 52-53, 65-66, 85, 113-114, 116, 119, 133, 137-140, 142, 155-157, 159-160, 162 (alleging that the Defendants: confined the prisoners to solitary confinement or double-solitary confinement for 23 hours per day and for months on end; provided the prisoners inadequate therapy, consisting of two-minute conversations through a cell door; denied or abruptly altered the prisoners’ prescription medication for no reason; provided the prisoners crossword puzzles and colorable cartoons as a form of
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treatment for the prisoners’ mental illnesses; subjected the prisoners, who are
suffering from mental illnesses, to harsh punishment, such as four pointing; and
did not offer the prisoners the opportunity to speak with a psychiatrist via the tele-
psych).
Although the Defendants attempt to frame these allegations in the complaint
as mere disagreement and dissatisfaction with the treatment that the Plaintiffs
received at USP Lewisburg, we decline to accept their framing. As instructed by
the United States Court of Appeals for the Third Circuit:
[T]here are circumstances in which some care is provided yet it is insufficient to satisfy constitutional requirements. For instance, prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for “an easier and less efficacious treatment” of the inmate’s condition. West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978) (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)). Nor may “prison authorities deny reasonable requests for medical treatment . . . [when] such denial exposes the inmate ‘to undue suffering or the threat of tangible residual injury.’” Monmouth County Corr. Inst. Inmates, 834 F.2d at 346 (quoting Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976)). And, “knowledge of the need for medical care [may not be accompanied by the] . . . intentional refusal to provide that care.” Id. (alterations in original) (quoting Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th Cir. 1985)).
Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017).
Thus, when we accept the allegations in the complaint as true, we conclude
that the Plaintiffs have sufficiently alleged that the Defendants had knowledge of
their serious mental health issues and that, despite this knowledge, the Defendants
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intentionally or at least recklessly provided the Plaintiffs with such a minimal amount of treatment or healthcare that it plausibly violated the strictures of the Eighth Amendment to the United States Constitution. Accordingly, we recommend denying the Defendants’ motion to dismiss on this basis. See, e.g., Palakovic, 854 F.3d at 228-29 (concluding that the complaint stated an Eighth Amendment medical care claim, where the parents of a mentally ill young man, who had committed suicide in solitary confinement, alleged that: their son requested counseling, but his requests were ignored and he did not receive treatment; the prison’s psychologist would speak to prisoners in solitary confinement for one to two minutes at a time, through solid steel doors; prisoners suffering from mental illness were punished, rather than treated; and despite their son’s mental health issues and history of self-harm and suicide attempts, the defendants allowed him to repeatedly endure the harsh and unforgiving conditions of solitary confinement). IV. The Defendants’ Motion for Summary Judgment Should be Denied.
In the alternative, the Defendants have moved for summary judgment on the Plaintiffs’ Eighth Amendment claims. Doc. 29 at 19-47. The Plaintiffs oppose the Defendants’ motion for summary judgment, arguing that such a motion is improper at this early stage of the litigation because the Plaintiffs have not yet had an opportunity for discovery. See doc. 38 at 39-42. Thus, pursuant to Rule 56(d) of
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the Federal Rules of Civil Procedure, the Plaintiffs request the Court to deny the Defendants’ motion in order to allow them to obtain such discovery, which, they contend, will bear on genuine issues of material fact in this case. See id. In support of this request, the Plaintiffs have submitted a declaration from their counsel, averring that discovery is needed in order to fully and fairly respond to the Defendants’ motion. See id. at 40-41 (citing doc. 38-1).
In order to obtain time for discovery, Rule 56(d) generally requires a party to “show[ ] by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition” to a summary judgment motion. FED. R. CIV. P. 56(d). The party’s affidavit or declaration must show “‘what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not been previously obtained.’” Doe v. Abington Friends Sch., 480 F.3d 252, 255 n.3 (3d Cir. 2007) (quoting Dowling v. City of Philadelphia, 855 F.2d 136, 140 (3d Cir.1988)). When the party makes such a showing, the court may: “(1) defer considering the [summary judgment] motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” FED. R. CIV. P. 56(d).
Generally speaking, courts ‘“usually grant properly filed Rule 56[d] motions as a matter of course[,]” especially when “there are discovery requests outstanding or relevant facts are under the control of the [party moving for summary
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judgment].” Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 309-10 (3d Cir. 2011) (quoting Doe, 480 F.3d at 257). Moreover, courts are “‘obliged to give a party opposing summary judgment an adequate opportunity to obtain discovery[,]’” Doe, 480 F.3d at 257 (quoting Dowling, 855 F.2d at 139), since “by its very nature, the summary judgment process presupposes the existence of an adequate record[,]” id. (citing Fed. R. Civ. P. 56(c)).
Here, we conclude that the Plaintiffs’ request to obtain discovery should be granted and that the Defendants’ motion for summary judgment should be denied as premature. As explained by counsel in the Plaintiffs’ accompanying declaration, the Defendants have set forth new facts in their motion for summary judgment, which stem from over 1,200 pages of materials that have been attached to their dispositive motion. Doc. 38-1 at ¶ 5; see also id. at ¶ 8 (asserting that the Defendants’ records are incomplete and that the Defendants possess additional records that are relevant to the Plaintiffs’ case and opposition). As further explained by counsel, the Plaintiffs have not yet had the opportunity to engage in discovery related to the credibility of the factual averments contained in those materials. Id. at ¶ 5. Thus, the Plaintiffs assert that they need to conduct discovery into these factual averments and into the state of mind of the staff at USP Lewisburg, including the psychology and medical staff. Id. at ¶ 6. The Plaintiffs further assert that they will need to depose these staff members, and others who
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interacted with these staff members or the Plaintiffs themselves. Id. at ¶ 7. Through these depositions, the Plaintiffs contend that they will be able to establish facts demonstrating the ineffective medical care that is provided to mentally ill prisoners at USP Lewisburg. Id.
In addition to these depositions, the Plaintiffs assert that they also need discovery regarding USP Lewisburg’s practices, policies, procedures, and training for “discontinuing or providing” mental health treatment to prisoners, in order to establish that the staff acted contrary to such policies and procedures, and with deliberate indifference to the Plaintiffs’ serious medical needs. Id. at ¶ 9. Finally, the Plaintiffs assert that they need to discover facts regarding USP Lewisburg’s use of restraints, confinement, and other measures, which are used to “punish or treat” prisoners suffering from mental illnesses. Id. at ¶ 10.
Having thoroughly reviewed these assertions in counsel’s declaration, we conclude that the Plaintiffs have sufficiently explained what information they seek, how, if that information is uncovered, it would preclude summary judgment, and why that information has not been previously obtained. Thus, we find no reason to depart from the well-settled principle that we are obliged to give a party opposing summary judgment an adequate opportunity to obtain discovery. We thus recommend granting the Plaintiffs’ request to obtain such discovery. Given this recommendation, we similarly recommend denying the Defendants’ motion for
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summary judgment, as well as the Defendants’ pending motion to stay discovery (see doc. 45). V. Conclusion.
In sum, we conclude that the Defendants’ dispositive motion should be denied in its entirety. With respect to the Defendants’ motion to dismiss, we conclude that: the Director of the BOP and the Warden of USP Lewisburg are the appropriate defendants to ensure that the Plaintiffs’ requested relief is carried out; the Plaintiffs should be directed to amend their complaint since it is unclear whether they are challenging the fact or duration of their confinement; and the Plaintiffs do not appear to be raising an Eighth Amendment conditions of confinement claim—but to the extent they are, they should also be directed to amend their complaint in this regard. And, with respect to the Defendants’ motion for summary judgment, we conclude that the Plaintiffs have not yet had the opportunity to conduct discovery, which bears on genuine issues of material fact in this case. Thus, because the Defendants’ dispositive motion should be denied in its entirety, we also conclude that the Defendants’ motion to stay discovery should be denied.
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VI. Recommendation.
IT IS RECOMMENDED that the Defendants’ motion to dismiss or, in the
alternative, motion for summary judgment (doc. 23) be DENIED. IT IS
FURTHER RECOMMENDED that the Defendants’ motion to stay discovery
(doc. 45) also be DENIED. IT IS FINALLY RECOMMENDED that the Court
direct the Clerk of Court to substitute “Mark S. Inch” for Director Kane in this
action.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge’s proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive
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further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions. Submitted this 20th day of June, 2018.
S/Susan E. Schwab Susan E. Schwab United States Chief Magistrate Judge
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 Case 1:17-cv-01011-YK Document 61 Filed 07/05/18 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JUSAMUEL RODRIGUEZ MCCREARY, et al., Plaintiffs

Civil No. 1:17-cv-1011

v.
FEDERAL BUREAU OF PRISONS, et al., Defendants

(Kane, J.) (Schwab, C.M.J.)
Filed Electronically

PLAINTIFFS’ OBJECTIONS TO REPORT & RECOMMENDATION Plaintiffs, by and through counsel, hereby respond to certain recommendations in the Magistrate Judge’s Report & Recommendation. I. BACKGROUND On June 9, 2017, Plaintiffs Jusamuel Rodriguez McCreary, Richard C. Anamanya, and Joseph R. Coppola (collectively, “Plaintiffs”) filed a class action complaint against Defendants, alleging unconstitutional treatment of mentally ill prisoners within the Special Management Unit (“SMU”) at the United States Penitentiary at Lewisburg (“USP Lewisburg”). On October 2, 2017, the Defendants filed a motion to dismiss, or in the alternative, motion for summary judgment. Plaintiffs opposed Defendants’ motion on November 24, 2017, and Defendants filed a reply on December 22, 2017. Defendants also filed a motion for a protective order

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to stay discovery until 30 days after a decision on the motion to dismiss. Plaintiffs opposed this motion, and Defendants replied.
On June 28, 2018, the Magistrate Judge issued a Report and Recommendation, recommending that Defendants’ motion to dismiss, or in the alternative, motion for summary judgment be denied, and that the motion to stay discovery be denied. II. ARGUMENT
The Report and Recommendation suggests that Plaintiffs amend their Complaint to clarify the extent to which Plaintiffs are challenging the duration of their sentences. See Report & Recommendation (“R&R”), ECF No. 58 at 40, 54. Plaintiffs are not challenging the duration of their confinement, and, therefore, an amended complaint is not necessary.
The Report and Recommendation raises the possibility that two sets of allegations in the Complaint may be intended to challenge the duration of the Plaintiffs’ confinement. First, the Report and Recommendation states that allegations related to Plaintiff Coppola’s loss of good conduct time may support a claim challenging Mr. Coppola’s sentence. See R&R at 39 (citing Compl. ¶¶ 155, 160). These allegations were not intended to challenge the duration of Mr. Coppola’s confinement. Rather, as the Court recognized, Plaintiffs were “simply providing context to the alleged fact that untreated mental health issues can lead to
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disciplinary issues for prisoners who need treatment or medication to help control
their behavior.” Id. at 38.1 Additionally, Plaintiffs sought to illustrate the retaliation
faced by inmates at USP Lewisburg who challenged unfair treatment by BOP
officials, and the resulting negative impact this retaliation had on their mental
health.2 The allegations related to Mr. Coppola’s loss of good time are not an attempt
to challenge the duration of his sentence.3
Second, the Report and Recommendation reasons that “the Plaintiffs have
explicitly addressed the Defendants’ disciplinary system in the claim for relief
section of the complaint” and therefore may be challenging their sentences. R&R at
39 (citing Compl. ¶ 169(b)). Again, this assertion merely relates to Plaintiffs’
allegation “that a prisoner’s confinement in isolation combined with the harsh
1 See Compl. ¶ 155 (“While Mr. Coppola has been incarcerated, he has made over 80 requests, including 25 at USP Lewisburg, for treatment of his bipolar disorder. Every one of these requests has been refused or ignored. According to Mr. Coppola, this lack of treatment during his incarceration—especially when it was for 24 hoursa-day, seven days-a-week in a SHU setting—has triggered extreme mood swings, worsening his bipolar disorder and resulted in his loss of over two years of good time.”). 2 See id. ¶ 160 (“[O]n August 28, 2016, Mr. Coppola was involved in a disciplinary incident that resulted in his placement in restraints for 22 hours, from which he still has marks on his wrists. Mr. Coppola filed a misconduct charge over the incident, but it was rejected at every level. As punishment for this incident and for his filing the misconduct charge, Mr. Coppola lost good time and was notified that his SMU completion had been ‘cancelled.’ Mr. Coppola withdrew a lawsuit he had filed against the BOP for fear he would face additional, severe retaliation.”). 3 Moreover, Mr. Coppola has already been released from BOP custody.
3

Case 1:17-cv-01011-YK Document 61 Filed 07/05/18 Page 4 of 6

disciplinary practices (such as four pointing) pose a substantial risk to that prisoner’s mental health.” Id. at 38-39.4
Finally, the Report and Recommendation states that “it does not appear that the Plaintiffs are actually raising an Eighth Amendment conditions of confinement claim,” but suggests that if Plaintiffs object to this finding, then Plaintiffs should “be instructed to more clearly define that claim in an amended complaint.” Id. at 41-42. Plaintiffs agree that they are not bringing a separate conditions of confinement claim under the Eighth Amendment. III. CONCLUSION
For the foregoing reasons, Plaintiffs object to the recommendation that they amend the Complaint to clarify the extent to which Plaintiffs are challenging the duration of their sentences. Plaintiffs are not challenging the duration of their confinement, nor are they raising an Eighth Amendment conditions of confinement claim, and, therefore, should not be required to amend the Complaint.

Dated: July 5, 2018

Respectfully submitted,
/s/ Kevin H. Metz Attorneys for Plaintiffs:

4 See id. ¶ 169(b) (“Defendants’ policies, practices, and procedures systemically violate the Eighth Amendment rights of individuals with mental illness. Such policies, practices and procedures include, without limitation: . . . A disciplinary system that does not consider a prisoner’s serious mental illness and the impact of isolation in assessing whether to sanction the prisoner or, if so, the nature of the sanction”).
4

Case 1:17-cv-01011-YK Document 61 Filed 07/05/18 Page 5 of 6
Kevin H. Metz PA ID No. 324044 Marissa R. Boynton (admitted pro hac vice) Katherine B. Palmer-Ball (admitted pro hac vice) LATHAM & WATKINS LLP 555 Eleventh Street NW Suite 1000 Washington, DC 20004 Tel.: (202) 637-2200 Fax: (202) 637-2201 kevin.metz@lw.com marissa.boynton@lw.com katherine.palmer-ball@lw.com
Alexandra Morgan-Kurtz James Davy PA INSTITUTIONAL LAW PROJECT 100 Fifth Ave. Suite 900 Pittsburgh, PA 15222 Tel.: (412) 434-6175 amorgan-kurtz@pailp.org jdavy@pailp.org
Philip Fornaci (admitted pro hac vice) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 Dupont Circle NW Suite 400 Washington, DC 20036 Tel.: (202) 319-1000 Fax: (202) 319-1010 phil_fornaci@washlaw.org
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Case 1:17-cv-01011-YK Document 61 Filed 07/05/18 Page 6 of 6

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above Plaintiffs’ Reply
Brief in Further Support of Plaintiffs’ Motion to Seal was served upon the following
via ECF on July 5, 2018:
Timothy S. Judge United States Attorney’s Office Middle District of Pennsylvania 235 N. Washington Ave. P.O. Box 309 Scranton, PA 18501 Tel: 570-348-2827 Email: timothy.judge@usdoj.gov

DATED: July 5, 2018

By: /s/ Kevin H. Metz Kevin H. Metz (admitted pro hac vice) LATHAM & WATKINS LLP 555 Eleventh Street NW, Suite 1000 Washington, DC 20004 Tel.: (202) 637-2200 kevin.metz@lw.com
Counsel for Plaintiffs

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 Case 1:17-cv-01011-JPW-SES Document 138 Filed 03/23/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JUSAMUEL RODRIGUEZ MCCREARY, RICHARD C. ANAMANYA, and JOSEPH R. COPPOLA,
each individually and on behalf of all others similarly situated,
PLAINTIFFS,
v.

Case No. 1:17-CV-01011 (Judge Wilson) (Magistrate Judge Schwab)

THE FEDERAL BUREAU OF PRISONS, THOMAS R. KANE, DAVID J. EBBERT,
DEFENDANTS.

STIPULATION OF DISMISSAL

Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), Plaintiffs’ counsel conferred with

Defendants’ counsel and the parties agree that this case should be dismissed. The

Bureau of Prisons has closed the Special Management Unit at USP Lewisburg and

transferred all individuals previously held in that unit to other prisons, and the issue

that is the subject of Plaintiffs’ action is therefore moot.

DATED: March 23, 2021:

Submitted by:

/s/ Kevin H. Metz_______ Kevin H. Metz PA ID No. 324044

Case 1:17-cv-01011-JPW-SES Document 138 Filed 03/23/21 Page 2 of 3
Marissa R. Boynton (admitted pro hac vice) LATHAM &WATKINS LLP 555 Eleventh Street NW, Suite 1000 Washington, DC 20004 Tel.: (202) 637-2200 kevin.metz@lw.com marissa.boynton@lw.com Alexandra Morgan-Kurtz PA INSTITUTIONAL LAW PROJECT PA ID No. 312631 100 Fifth Ave., Suite 900 Pittsburgh, PA 15222 Tel.: (412) 434-6175 amorgan-kurtz@pailp.org
Counsel for Plaintiffs
/s/ Timothy S. Judge Timothy S. Judge Assistant U.S. Attorney PA 203821 U.S. Attorney's Office 235 North Washington Ave P.O. Box 309 Scranton, PA 18503 Tel.: (570) 348-2800
Counsel for Defendants
2

Case 1:17-cv-01011-JPW-SES Document 138 Filed 03/23/21 Page 3 of 3

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the forgoing was served
upon the following via ECF on March 23, 2021:
Timothy S. Judge United States Attorney’s Office Middle District of Pennsylvania 235 N. Washington Ave. P.O. Box 309 Scranton, PA 18501 Tel: 570-348-2827 Email: timothy.judge@usdoj.gov

DATED : March 23, 2021

By: /s/ Kevin H. Metz_______
Kevin H. Metz
PA ID No. 324044 LATHAM &WATKINS LLP 555 Eleventh Street NW, Suite 1000 Washington, DC 20004 Tel.: (202) 637-2200 kevin.metz@lw.com

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