The opinion of the court was delivered by: Simandle, District Judge
This action arises out of an incident at the Federal Correctional Facility in Fort Dix, New Jersey ("FCI Fort Dix") in which a Bureau of Prisons ("BOP") officer at FCI Fort Dix allegedly slammed Plaintiff's head on the floor and choked Plaintiff in an attempt to force Plaintiff to spit out contraband that Plaintiff was attempting to swallow. Presently before the Court is a motion for summary judgment [Docket Item 39], submitted by Defendant the United States of America, seeking judgment on Plaintiff's claim brought pursuant to the Federal Tort Claims Act ("FTCA"). For the reasons expressed below, the Court will deny Defendant's motion for summary judgment.
During the period relevant to this action, Plaintiff was an inmate at FCI Fort Dix. (Pl. Dep. at 10-11.) On September 30, 2003, around 4 p.m., Plaintiff joined six other inmates in the facilities' bocce ball court to smoke marijuana, which had been rolled into a cigarette or "joint." (Id. at 27-29.) While the men passed the marijuana cigarette back and forth, Lieutenant Douglass Davis, with the Special Investigative Supervisor ("SIS") division,*fn2 was in the prison chapel watching the men with binoculars. (Pl. Dep. at 29; Davis Decl. ¶ 6.) As the men were about to finish smoking their marijuana, Plaintiff heard the squawk of a BOP officer's radio and Lieutenant's Davis' instructions to detain the inmates. (Pl. Dep. at 30.) On seeing the officers approaching, Plaintiff took the marijuana that he had in his possession, wrapped in paper, and stuck it down his pants and between the cheeks of his buttocks. (Id. ¶ 32-33.)
Lieutenant Davis, who saw Plaintiff stick something down the back of his pants, approached the inmates and asked them where they had put the "weed." (Pl. Dep. at 33; Davis Decl. ¶ 6.) The officers lined the inmates against a fence and performed pat searches of all the inmates, including Plaintiff, and then brought the inmates back to the SIS office. (Pl. Dep. at 35-36; Davis Decl. ¶ 7.) Once in the SIS office, the BOP officers separated the inmates into different rooms and performed strip searches. (Pl. Dep. at 36-37.) Lieutenant Davis and Officer Miller brought Plaintiff into Davis' office and Davis ordered Plaintiff to take off all of his clothes, which Plaintiff did. (Pl. Dep. at 39; Davis Decl. ¶¶ 9-10.) Lieutenant Davis then gave Plaintiff a series of instructions for the search, including lifting his feet and opening his mouth, and Plaintiff fully complied. (Pl. Dep. at 39-40; Davis Decl. ¶ 11.) Finally, Davis ordered Plaintiff to turn around, bend over and squat. (Pl. Dep. at 33; Davis Decl. ¶ 6.) Plaintiff did not comply with Davis' first request, but when Davis again asked Plaintiff to turn around and squat, Plaintiff complied, revealing a green balloon in his rectal area. (Pl. Dep. at 40; Davis Decl. ¶ 12.) Davis states that recognized the balloon as the type used to smuggle drugs. (Davis Decl. ¶ 13.) Davis ordered Plaintiff to hand him the green balloon, but instead Plaintiff turned around so that he was facing Davis and put the balloon in his mouth and tried to swallow the balloon. (Pl. Dep. at 40-42; Davis Decl. ¶ 14.) Davis states that he interpreted Plaintiff's action as an act of aggression. (Davis Decl. ¶ 15.)
In response to Plaintiff's conduct, Davis grabbed Plaintiff, picked him up, and slammed him on the ground. (Pl. Dep. at 42.) Davis used his radio to call for assistance and several officers entered Davis' office, including Officer Miele. (Pl. Dep. at 43-44; Pl. Decl. ¶¶ 10-11.) As soon as Officer Miele entered the office, Miele placed his knee on Plaintiff's back, kneeled so that his whole weight was pressed against Plaintiff's back, and wrenched Plaintiff's right arm behind Plaintiff's back (Plaintiff's left arm was pinned under his body). (Pl. Dep. at 43-44, 54; Pl. Decl. ¶ 11.) Lieutenant Davis stood up, at which point Officer Miele grabbed Plaintiff by his hair and began to bang Plaintiff's head and face on the ground. (Pl. Dep. at 44, 55-56; Pl. Decl. ¶ 13.) Miele banged Plaintiff's head three or four times on the ground. (Pl. Dep. at 68-69.) Davis told Miele to stop banging Plaintiff's head on the ground, and Miele let go of Plaintiff's head and instead grabbed his throat and began to choke Plaintiff. (Pl. Dep. at 44-45; Pl. Decl. ¶ 14.) Davis again told Miele to stop, repeating that Miele should simply restrain Plaintiff and they would take Plaintiff to a "dry cell."*fn3 (Pl. Dep. at 44; Pl. Decl. ¶ 15.) Miele continued to choke Plaintiff, with added force, and repeatedly told Plaintiff, "Spit it out, Spit it out!" (Pl. Dep. at 44; Pl. Decl. ¶ 16.) After several more seconds, Miele released Plaintiff's neck. (Pl. Dep. at 44; Pl. Decl. ¶ 17.)
On being released by Miele, Plaintiff had a metallic taste in his mouth and had difficulty breathing. (Pl. Dep. at 45; Pl. Decl. ¶ 18.) After putting two fingers in his mouth to see what was wrong with his mouth, Plaintiff swallowed blood and began dry-heaving. (Pl. Dep. at 45; Pl. Decl. ¶ 18.) In the process Plaintiff spit out the marijuana, which was covered in blood. (Pl. Dep. at 45; Pl. Decl. ¶ 18.) The officers then handcuffed Plaintiff. (Pl. Dep. at 45.) A physician's assistant did a medical assessment and then Plaintiff was brought to the infirmary. (Pl. Dep. at 70, 78-79; Pl. Decl. ¶ 22.) The physician's assistant initially gave Plaintiff Motrin for the pain, but when that was insufficient she gave him Naproxen. (Pl. Dep. at 78-79.)
As a result of this incident, Plaintiff had several cuts on his mouth and multiple bruises on his face, chest, and back. (Pl. Dep. at 57, 70; Pl. Decl. ¶ 21; Medical Report, Pl. Exh. 5.) He had continuing headaches and back aches. (Pl. Dep. at 80.)
He has permanent scars to his face and recurring lower-back pain. (Pl. Dep. at 88; Pl. Decl. ¶ 21.)
In June or July 2005, Plaintiff prepared and submitted his administrative tort claim, pursuant to 28 U.S.C. § 2675(a), to the Federal Bureau of Prisons and on February 3, 2006, the BOP denied Plaintiff's claim. (Compl. Exhs. 1-3.) On August 2, 2006, Plaintiff submitted the instant complaint pursuant to the Federal Tort Claims Act, asserting that the BOP officers employed "excessive force" on September 3, 2003. After some delay in proper service, Plaintiff served the United States in August 2007 and discovery was finally completed in July 2009. On November 24, 2009, Defendant file its motion for summary judgment, to which it attached portions of Plaintiff's deposition and an affidavit from Lieutenant Davis. Plaintiff submitted an opposition and included his entire deposition, an additional declaration from Plaintiff, medical records, and two BOP Program Statements. Defendant filed no reply.