David J. Widi v. United States et al.

2020 DNH 206

• Court: District Court, D. New Hampshire
• Decided: November 30, 2020
• Docket: 14-cv-160-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David J. Widi

v. Case No. 14-cv-160-SM Opinion No. 2020 DNH 206 United States et al.

ORDER

The United States, the last defendant in this action, has

moved for summary judgment (Doc. No. 305) on plaintiff David J.

Widi’s remaining claims, which allege that officers at the

Federal Bureau of Prisons subjected him to excessive force in

violation of the Federal Torts Claims Act (“FTCA”). The United

States contends that the use of force against Widi by prison

officers was reasonable and thus legally justified under the New

Hampshire law of battery (which controls Widi’s FTCA claims).

Additionally, it asserts that Widi’s claims based on Bureau of

Prisons (“BOP”) supervisors’ purported failures to train or

supervise officers are precluded by the FTCA’s discretionary

function exception. To date, Widi has not filed an objection to

the United States’s motion, despite being granted five filing

extensions to do so. Nor has he submitted evidence showing that

BOP officers acted unreasonably or without justification during

any of the use-of-force incidents of which he complains.

1 After viewing the undisputed evidence of record, which

includes video footage, in the light most favorable to Widi, the

court finds that no reasonable juror could conclude that the

force used against Widi during each complained-of incident was

unreasonable or unjustified under New Hampshire law.

Accordingly, the court grants summary judgment in favor of the

United States on all employee-conduct-based FTCA counts.

Additionally, the court dismisses Widi’s remaining supervisor

liability claims, as the FTCA’s discretionary function exception

strips this court of jurisdiction to rule on such claims.

I. Background The following summary draws from the United States’s recent

filings and Widi’s responses thereto, rehearsing the facts

therein “in the light most favorable to the nonmoving party

(here, the plaintiff), consistent with record support,” and

giving them “the benefit of all reasonable inferences that those

facts will bear.” See Noviello v. City of Bos., 398 F.3d 76, 82

(1st Cir. 2005) (citation omitted). In light of the court’s

prior order dismissing most of Widi’s claims under Rule 12(b),

see Doc. No. 290, the court rehearses only those facts pertinent

to the claims remaining against the United States for the

allegedly excessive force used by BOP officers and the alleged

failure to train such officers before such force was used.

Since Widi – a pro se plaintiff – has submitted no testimonial

2 or documentary evidence to support his claims or oppose summary

judgment, the following recounts the unverified allegations made

in his amended complaint – giving them what little, if any,

weight they are due at summary judgment – before summarizing the

facts gleaned from the undisputed evidence of record.

A. BOP policies on use of force This case arises from pleadings filed by Widi regarding the

allegedly excessive use of force by BOP officers against him

when he was an inmate at the Federal Correctional Institutions

in Ray Brook, New York (“FCI Ray Brook”) and then Berlin, New

Hampshire (“FCI Berlin”). At the core of his remaining claims,

Widi contends that the force used by BOP officers was excessive

and tortious, and thus in violation of his statutory rights.

BOP regulations and program statements (“PS”) authorize the

use of force in certain situations. 28 C.F.R. § 552.20; see

also PS 5566.06. Under these policies and regulations, BOP

staff may use force “when attempts to gain voluntary cooperation

form the inmate have not been successful.” PS 5566.06 at 2; see

also 28 C.F.R. § 552.22 (“Staff ordinarily shall first attempt

to gain the inmate’s voluntary cooperation before using

force.”). In such cases, staff may use force “only as a last

alternative after all other reasonable efforts to resolve a

situation have failed,” and “must use only that amount of force

necessary to gain control of the inmate, to protect and ensure

3 the safety of inmates, staff, and others, to prevent serious

property damage and to ensure institution security and good

order.” 28 C.F.R. § 552.20.

BOP regulations distinguish between two types of force

officers may use to ensure prison order and security — immediate

and calculated. 28 C.F.R. § 552.20; see also PS 5566.06, at 3.

“Staff may immediately use force and/or apply restraints when

[certain inmate behavior] constitutes an immediate, serious

threat to the inmate, staff, others, property, or to institution

security and good order.” 28 C.F.R. § 552.21(a). “In an

immediate use of force situation, staff may respond with or

without the presence or direction of a supervisor.” PS 5566.06,

at 4. Calculated force occurs, by comparison, “in situations

where an inmate is in an area that can be isolated (e.g., a

locked cell . . .) and where there is no immediate, direct

threat to the inmate or others.” 28 C.F.R. § 552.21(b). When

there is time for the calculated use of force or application of

restraints, staff must first determine if the situation can be

resolved without resorting to force.” Id. When “feasible,” BOP

policy further instructs prison staff to use “confrontation

avoidance techniques . . . to avoid calculated use of force

situations.” PS 5566.06 at 2.

BOP regulations and PS 5566.06 also provide guidance on the

use of restraints. Staff may “apply restraints (for example,

4 handcuffs) to the inmate who continues to resist after staff

achieve physical control of that inmate, and may apply

restraints to any inmate who is placed under control by the Use

of Force Team Technique.” 28 C.F.R. § 552.22(e). “Where

immediate use of restraints is indicated, staff may temporarily

apply such restraints to an inmate to prevent that inmate from

hurting self, staff, or others, and/or to prevent serious

property damage.” Id. § 552.22(d). If “the inmate’s behavior

becomes increasingly aggressive and disruptive, staff must

determine the type of progressive restraints to be used (hard

restraints with or without waist chain or waist belt, four-point

soft restraints with hard restraints used for securing the

inmate to the bed, or four-point hard restraints).” PS 5566.06

at 11. “Restraints should remain on the inmate until self-

control is regained,” 28 C.F.R. § 552.22(f), as demonstrated,

for example, by “a pattern of non-disruptive behavior over a

period of time,” PS 5566.06 at 11.

Finally, BOP policy requires documentation for each use of

force. PS 5566.06 at 4-5. For all uses of force, BOP officers

must submit written documentation that “reflect[s] the actions

and responses of each staff member participating in the

confrontation avoidance process.” Id. BOP policy further

requires that, for calculated uses of force, “[t]he entire

process must be videotaped, including the introduction of all

5 staff participating in the confrontation avoidance process.”

Id.

B. Claim 1: July 18, 2014 immediate use of force for refusal to comply with escort to the Special Housing Unit (“SHU”) Widi asserts that on at least seven occasions, BOP officers

tortiously used excessive force against him or misapplied

restraints, in violation of BOP policy and thus the FTCA. The

first of these incidents occurred on July 18, 2014, when BOP

officers escorted Widi on his requested transfer to the SHU.

Widi alleges that, during the transfer, officers

maliciously and sadistically subjected him to an immediate use

of force by kicking him in the shin, pulling him by the arms

while he was handcuffed, and pushing him to the floor for

refusing to accept an allegedly hostile cell assignment. Am.

Compl. (Doc. No. 226) ¶¶ 203-04, 511-14. Widi asserts that this

use of force caused him pain to his knee, shoulders, and wrists,

a large contusion on his leg, and lacerations to his ankle and

foot. Id.

In support of its motion, the United States has submitted

BOP written memoranda and video footage documenting the

immediate use of force against Widi. Because the incident

involved an immediate, as opposed to a calculated, use of force,

the video footage comes from surveillance cameras recording

traffic in the cell block but not sound. Though Widi maintains

6 that he did not become violent or display signs of imminent

violence, the video shows that Widi initiated the incident by

attempting to pull away from escorting officers, stepping

sideways instead of forwards, planting his feet, and then

pushing back against his escorts. July 18, 2014 Video Footage

(Doc. No. 305-14); see also McCoy July 18, 2014 Mem. (Doc. No.

305-15).1 In response, the escorting officers quickly placed

Widi on the ground and held him there until he ceased his

resistance. July 18, 2014 Video Footage (Doc. No. 305-14); see

also Taylor July 18, 2014 Mem. (Doc. No. 305-2), July 18, 2014

Incident Report (Doc. No. 305-3); Bruce July 18, 2014 Mem. (Doc.

No. 305-7). The officers then stood Widi up against a wall and

applied restraints. July 18, 2014 Video Footage (Doc. No. 305-

14). After the incident, Widi reported that he was “fine” and

declined medical examination. See Malcolm July 18, 2014 Injury

Assessment (Doc. No. 305-11).

C. Claim 2: July 19, 2014 calculated use of force in response to obstruction in Widi’s cell window The day after BOP officers used immediate force against

Widi, BOP supervisors authorized a calculated use of force in

response to an obstruction in Widi’s cell window. Widi alleges

At the time of Widi’s incarceration, BOP Lt. Amanda McCoy 1

was known as Amanda Curren. McCoy Decl. (Doc. No. 305-13, ¶ 1). The United States’s motion and its exhibits identify McCoy by her former name. The court refers to McCoy and her documents by her current last name throughout this order. 7 that BOP supervisors did so to punish him for the (alleged)

assault the previous day, and that an officer created a false

incident report stating that Widi had covered his cell window to

justify the force team’s entry. Am. Compl. (Doc. No. 226)

¶¶ 207-09. He further alleges that, upon entering his cell,

officers escorted him to a shower area, removed his clothing on

video, handled him aggressively, and placed him in restraints,

the sum of which allegedly caused pain, lacerations, contusions,

abrasions, discomfort, embarrassment, claustrophobia, and mental

anguish. Id. ¶¶ 207-08.

The video footage confirms that, despite Widi’s allegations

to the contrary, an obstruction was present in his window. See

July 19, 2014 Video Footage #1 (Doc. No. 305-31). According to

one officer’s incident report, Widi had earlier failed to comply

with or respond to direct orders to remove the obstruction from

the window. Folnsbee July 19, 2014 Incident Report (Doc. No.

305-26). The Warden reportedly “determined that inmate Widi

could not be approached without danger to himself or others,”

and that “a delay in bringing the situation under control would

constitute a serious hazard to the inmate and others.” See

McCoy July 19, 2014 Mem. (Doc. No. 305-17). A supervising

lieutenant thus assembled a calculated use-of-force team

comprised of herself and five armored officers. Id.; see also

See July 19, 2014 Video Footage #1 (Doc. No. 305-31)

8 (documenting the stated justification for the use, as well as

the force team members’ individual duties, prior to executing

the use of force).

The video footage shows that, upon arrival, the force team

offered Widi a chance to remove the obstruction in his window

and “cuff up” voluntarily, which he accepted, obviating the need

for further use of force. See July 19, 2014 Video Footage #1

(Doc. No. 305-31). The force team then removed Widi from his

cell without incident. When removed to a second location,

however, Widi refused to respond to the supervising lieutenant

when asked about the obstruction and whether he would submit to

a visual search. Additionally, he remained silent when asked

questions by medical staff attempting to assess the state of

Widi’s physical and mental health. Id.

The force team responded to Widi’s silence by performing a

full-body search in a third location that appears in the video

footage to be an empty cell, not a shower area. Id. In a sworn

declaration, the supervising lieutenant explains that because

“Widi had been hidden from the view of BOP personnel for a

significant period of time while his window was obstructed, a

full body visual search was warranted to ensure that [Widi] had

not harmed himself or fashioned a weapon with which he may

attempt to harm other inmates or BOP staff.” McCoy Decl. (Doc.

No. 305-13) ¶ 2; see also McCoy July 19, 2014 Mem. (Doc. No.

9 305-17). The video footage shows that, after officers stripped

Widi’s clothes and searched him for weapons, medical personnel

inspected his body and noted minor abrasions on Widi’s lower

leg. July 19, 2014 Video Footage (Doc. No. 305-31). The force

team then spent several minutes carefully placing Widi in soft

ambulatory restraints. Id.

Throughout this process, officers restricted Widi’s

movement by holding down his torso and individual appendages in

a controlled manner. Widi, at time, expressed some momentary

discomfort, but otherwise showed no signs of harm. At the

conclusion of the video, the supervising lieutenant checked the

arm and leg restraints and stated for the video record that they

were perfectly applied and secured. Id.; see also McCoy July

19, 2014 Mem. re: Unsecured Restraints (Doc. No. 305-18).

D. Claim 3: July 19, 2014 calculated use of force in response to soft restraints becoming unsecure Later that day, Widi reported that one of his soft

restraints was not secure. Widi alleges that the restraints had

not been properly secured by the staff. Am. Compl. (Doc. No.

226) ¶¶ 210-12. The officer who reported the problem to the

supervising lieutenant maintained that Widi had tampered with

the restraints and freed himself. McCoy Decl. (Doc. No. 305-13)

¶ 3 (describing the officer’s report to her about the

restraints); McCoy July 19, 2014 Mem. re: Unsecured Restraints

10 (Doc. No. 305-18). (There is no video footage capturing how

Widi’s restraints became unsecure.) In response to Widi’s

suspected tampering, BOP supervisors authorized and assembled a

calculated-use-of-force team to place Widi in more restrictive

restraints. Am. Compl. (Doc. No. 226) ¶¶ 210-12.

Widi alleges that, in reapplying the restraints, officers

pulled and twisted the original restraints, pushed him onto the

bed, held his head, and held him down with their protective-

gear-clad bodies, causing bruises, abrasions, pain, and

discomfort. Id. ¶¶ 211-12. He further states that the new

metal “black boxed” and “Martin-chained” restraints further

restricted his movement, interfered with his blood circulation,

and caused pain and discomfort. Id. ¶¶ 214. According to Widi,

such “hard restraints are not to be used unless the inmate has a

history of defeating soft ambulatory restraints.” Id.

Video footage submitted by the United States captures the

entire incident. July 19, 2014 Video Footage #2 (Doc. No. 305-

47). At the beginning of the video, the supervising lieutenant

acknowledges that Warden Tatum had authorized the use of a force

team to apply hard restraints due to Widi’s (perceived)

disruptive behavior. Id. Officers then moved to Widi’s cell

and encouraged him to comply with the application of hard

restraints to avoid unnecessary injuries. Id. Though Widi

initially agreed, he resisted officers as they attempted to

11 remove his soft restraints. In response, members of the force

team used firmer holds to completely restrict the movement of

Widi’s arms and legs. At several times, Widi complained of the

position and force applied to his shins and ankles, prompting

the officers to occasionally change the position or forcefulness

of their holds. Id. After the force team applied the hard

restraints, medical personnel assessed Widi’s condition. The

examining nurse noted a “small superficial abrasion to left

mandible with scant amount of bleeding, healing abrasions to the

left knee and scabbed areas to right foot and ankle unchanged.”

July 19, 2014, Medical Assessments (Doc. Nos. 305-40, -41, -42).

During a review of Widi’s condition hours later, medical staff

further confirmed that Widi’s restraints did not require

adjustment. Id.

E. Claim 4: July 19, 2014 calculated use of force in response to removal of the Martin chain and hard restraints After officers had applied the hard restraints, Widi

“slipped the Martin chain,” thereby loosening his hard

restraints. Am. Compl. (Doc. No. 226) ¶¶ 217, 226. Widi

alleges that the officers had wrongly re-applied the restraints

because he was not violent or displaying signs of imminent

violence. Id. He also alleges that they had re-applied the

restraints too tightly. Id.

12 BOP log notes show that an officer checked on Widi every

15 minutes after he was placed in hard restraints earlier in the

afternoon. July 19, 2014 Restraint Checks (Doc. No. 305-19);

15-minute Check Form (Doc. No. 305-20). About 1.5 hours after

hard restraints were applied, an officer denied Widi’s request

to have the restraints removed. Id. Widi then refused his

evening meal, covered his cell window, and hit the duress button

in his cell. Id. By 7:30 p.m., he had freed himself from the

Martin chain. Id.

In response, the Warden again reportedly approved and

assembled a calculated-use-of-force team to re-secure the

restraints. Myers July 19, 2014 Mem. (Doc. No. 205-65).2 In

accordance with BOP policy, officers took video footage of the

interaction. July 19, 2014 Video Footage #3 (Doc. No. 305-9).

In the footage, it appears that the force team began by

utilizing confrontation avoidance procedures, and that Widi

complied with orders to place the loose end of the Martin chain

attached to his person outside the food tray slot. See also

Myers July 19, 2014 Mem. (Doc. No. 205-65). Even when viewing

the video footage in the light most favorable to Widi, the

2 In submitting its filing electronically, the United States mislabeled certain exhibits, including Myers’s June 19, 2014 memorandum. The mislabeling appears to have been inadvertent. This order cites to the exhibit numbers provided by the court’s electronic filing system for the sake of clarity. 13 footage does not show that the force team aggressively or

forcefully handled Widi.

After the force team secured Widi’s restraints, Widi was

medically assessed. Medical records for an exam performed

shortly prior to the incident indicate that staff were able to

place a finger under Widi’s cuffs, and that the area had good

color, sensation, and skin temperature. July 19, 2014 Health

Services Restraint Review (Doc. No. 305-43). The records also

state that after the incident, Widi’s extremities were in stable

neurovascular condition and that the reapplication of the Martin

chain resulted in no new injuries. Id.

F. Claim 5: August 20, 2014 immediate use of force in response to obstruction of cell window and food tray slot On August 20, 2014, Widi covered his cell window and then

placed a mattress in front of his cell’s food tray slot when an

officer opened it to check on his condition. See Am. Compl.

(Doc. No. 226) ¶¶ 223-24. Widi alleges that on that day, an

officer had served him a false incident report and that a second

officer had initiated disciplinary proceedings against Widi for

covering his cell window. He further alleges that officers then

gathered chemical agents and a force team to fire chemical

agents into Widi’s cell through the food tray slot without first

attempting confrontation avoidance procedures. Id.

14 According to Widi, he “was able initially to block most of

the spraying,” but was defeated when two officers jabbed,

prodded, and pushed him out from behind the mattress “so that

they could douse him down with the chemical agent.” Id.

Officers also allegedly struck Widi’s thighs, groin, and

buttocks repeatedly until he grabbed the broom handle and broke

it in two. Id. It is undisputed that Widi barricaded his door

with a mattress and that officers pushed a broom handle into his

cell through the food tray slot on his cell door. Widi argues

the use of force was unnecessary and excessive because he did

not become violent or display signs of violence, was locked in a

SHU cell alone, and did not pose a danger to anyone. Id.

¶¶ 608.

The surveillance video footage (no audio) shows that, at

approximately 2:25 p.m., an officer discovered that Widi had

covered his cell window, thereby blocking his person and his

cell’s interior from observation. Aug. 20, 2014 Video Footage

#1 (Doc. No. 305-50). Though the surveillance tape lacks sound,

it appears that the officer called out to Widi through the door.

The footage then shows that the officer knocked on Widi’s cell

while waiting for backup. About 3.5 minutes later, the

supervising lieutenant arrived and issued orders to Widi to

remove the obstruction or verbally respond. Id.; see also Hess

Aug. 20, 2014 Mem. (Doc. No. 305-49). Widi reportedly did

15 neither. Hess Aug. 20, 2014 Mem. (Doc. No. 305-49). An officer

then attempted to view inside the cell through the food tray

slot but presumably was prevented from doing so by the mattress

Widi concedes he placed in front of the food tray slot. Aug.

20, 2014 Video Footage (Doc. No. 305-50).

According to the memorandum prepared by Lt. Hess, who was

the supervising lieutenant for the incident, Hess recalled in

that moment that Widi had attempted to commit suicide four weeks

earlier. Hess Aug. 20, 2014 Mem. (Doc. No. 305-49). Hess thus

considered the situation to be an emergency and ordered staff to

utilize a broomstick to maneuver the mattress and regain sight

on Widi. Id.; see also Aug. 20, 2014 Video Footage #2 (Doc. No.

350-53) (memorializing justification for immediate use-of-force

and officers involved after the incident).

The surveillance video footage confirms that officers

attempted to maneuver the mattress with the broomstick, and that

Widi resisted, resulting in an officer being knocked to the

floor and the broom handle breaking in half. Aug. 20, 2014

Video Footage #1 (Doc. No. 305-50). Widi then kept a broken

piece of the broom handle in the cell and did not surrender the

weapon.3 Id. After about eight minutes, the officers infused

3 In his complaint, Widi alleges that one officer later initiated disciplinary proceedings by falsely accusing Widi of attempting to stab the officer with the broken broom handle. According to Widi, the incident report underlying the disciplinary proceeding was expunged as the video of the

16 pepper spray into the cell, first in a mist, and then by

launching a pepper ball which burst upon contact. Id.; see also

Hess Aug. 20, 2014 Mem. (Doc. No. 305-49). Afterwards, Widi

passed his hands through the slot for cuffing so he could be

removed from the pepper-spray-affected cell. Officers then

escorted Widi to the shower. Aug. 20, 2014 Video Footage #2

(Doc. No. 350-53); see also Hess Aug. 20, 2014 Mem. (Doc. No.

305-49).

G. Claim 6: August 20, 2014 immediate use of force during decontamination in shower area After the above incident, officers escorted Widi to the

showers to remove the chemical agents used. See Am. Compl.

(Doc. No. 226) ¶¶ 227. Widi alleges that the officers placed

him under the shower but did not remove his chemical-affected

clothing, “thereby preventing him from being decontaminated.”

Id. The officers then allegedly placed Widi against a wall,

pushing his nose into the wall from behind, “cut off [his]

clothing and he experienced humiliation and embarrassment at

being disrobed in a public setting.” Id.

Widi also states that an officer placed gloves contaminated

with chemical agents on Widi’s face and poked Widi’s eye,

incident showed the allegations were false. The United States does not rely on the testimony of that officer to support its summary judgment defense. Regardless, the court at summary judgment defers to the uncontroverted video footage of the incident, drawing all reasonable inferences from that footage in Widi’s favor. 17 causing pain. According to Widi, he “tried to shake his head to

get” the officer’s fingers out of his eyes, at which point the

team forced him to the floor, causing him to bite his tongue and

strike his knee on the floor. Id. Widi alleges that, in the

struggle, he suffered pain from the officers pulling on his

restraints, as well as “contusions, lacerations and abrasions.”

The video footage documenting the incident supplements and,

at times, contradicts Widi’s unsworn allegations. The footage

shows that Widi, while in the shower, began to complain and to

move independently while officers tried to hold him still. Aug.

20, 2014 Video Footage #2 (Doc. No. 350-53). The officers then

removed Widi from the shower and placed him against a wall to

remove his contaminated clothes. Widi began to resist and push

away from the restraining officers when medical staff attempted

to do a medical assessment. Officers insisted that Widi remain

in compliance, but Widi forcefully pushed back against them

while yelling: “you guys tried to assault me . . . [f**king]

stab me.” Id.

In response, officers threw Widi to the ground and piled on

him to control his arms, legs, and head. One officer appeared

to have used a headlock temporarily. When Widi calmed down, the

officers applied restraints and slowly returned him to the wall.

He soon began resisting again. Id. In that struggle, an

18 officer who was controlling the back of Widi’s head momentarily

touched Widi’s face with a contaminated glove. Id. After Widi

again became calm, officers held him still and completed the

stripping of his contaminated clothing so that a medical

provider could examine him. The medical provider found that

though Widi had bitten his tongue during the incident, Widi

experienced no other significant physical injuries. Bunnell

August 20, 2014 Injury Assessment (Doc. No. 305-61). Officers

then escorted Widi to a holding cell to apply further restraints

before reattempting decontamination.

H. Claim 7: August 20, 2014 calculated use of force to restrain Widi after decontamination Later that day, a calculated-use-of-force team assembled to

move Widi from the holding cell and place him in different

restraints. Widi alleges that, after voluntarily submitting to

hand restraints during confrontation avoidance procedures, the

force team members “handled” him “aggressively” and used their

protective pads to harm him. Am. Compl. (Doc. No. 226) ¶ 231.

According to Widi, the team “maliciously and sadistically”

applied the restraints causing pain, lacerations, contusions,

and abrasions. Id. Additionally, he alleges, the use of

restraints was inappropriate because, he “had not displayed

imminent signs of violence” and because he “did not have a

19 history of defeating the hard restraints and the black-box was

not approved restraint equipment.” Id.

The video footage from this incident does not suggest that

the officers acted in an excessively aggressive manner towards

Widi. August 20, 2014 Video Footage #3 (Doc. no. 305-68). The

footage shows that, after the officers removed Widi from his

cell, they scanned him with a metal detector, escorted him to

the shower area, removed his remaining clothing, and conducted a

visual search. Id. Officers then placed Widi in a suicide

smock, applied hard ambulatory restraints, conducted a brief

medical check, and placed him in a cell. Id. On at least one

occasion, Widi complained that an officer was holding his arm at

a “weird angle.” Id. During the medical check, the nurse asked

officers to loosen some of the restraints, which they did. Id.

The nurse found good distal circulation and sensation and normal

skin color. The nurse also noted an earlier tongue bite and

minor abrasions that did not require further assessment. Id.

BOP records state that Widi remained in restraints from

about 5:00 p.m. until 5:00 a.m. the next morning. See Aug. 20,

2014 Fifteen Minute Check Form (Doc. No. 305-5); Two-Hour Lt.

Restraints Check Form (Doc. No. 305-64). The fifteen-minute

check log and medical examination records note that Widi was

agitated around 7:00 p.m. to 8:00 p.m. See Aug. 20, 2014

Fifteen Minute Check Form (Doc. No. 305-5); Bunnell August 20,

20 2014 Injury Assessment (Doc. No. 305-61). By 10:15 p.m. the

lieutenant approved the progressive removal of restraints,

starting with the leg restraints. Two-Hour Lt. Restraints Check

Form (Doc. No. 305-64). All restraints were removed by the

following morning. Id.

I. Supervision-based claims Widi also asserts in his complaint that the supervisory

personnel at FCI-Berlin failed to properly train, supervise, and

discipline the officers involved in each of the incidents

described above. Am. Compl. (Doc. No. 226) ¶¶ 503, 504, 528,

529, 554, 555, 586, 587, 613, 614, 638, 639, 668, 669. In May

2018, the United States and 79 now-dismissed Bivens defendants

moved to dismiss all of Widi’s supervisory claims arising from

BOP supervisors’ after-action reviews and authorizations of

calculated uses of force. Defs.’ Mot. to Dismiss (Doc. No.

287). In doing so, however, the defendants “inadvertently

failed” to address claims “arising from a failure to supervise

and train officers in advance of the immediate uses of force on

July 18 and August 20, 2014.” Def.’s Mot. for Summ. J. Mem.

(Doc. No. 305-1, at 32).

In March 2019, this court dismissed the former set of

claims because the supervisors’ judgments and decisions in

authorizing and reviewing calculated uses of force fell within

the FTCA’s discretionary function exception. Doc. No. 290 at 4.

21 As such, Widi’s claims that supervisors failed to train or

oversee officers in advance of the immediate uses of force

remain live in this case.

J. Widi’s motions to extend summary judgment response deadline On February 24, 2020, the United States filed and served

the instant motion for summary judgment via the court’s

electronic filing system. Doc. No. 305. This filing included a

complete index of every exhibit cited in the United States’s

memorandum. As noted more recently by Widi, this filing did not

include a certificate of service stating that the United States

sent Widi copies of the conventionally filed exhibits that could

not be filed electronically. Id.; see also Widi Mot. to Strike

(Doc. No. 314) (filed in August 2020).

Under Local Rule 7.1, Widi’s response was due within 30

days of February 24 – specifically March 26, 2020. Widi did not

respond by that date. On April 6, 2020, this court sua sponte

extended the summary judgment response deadline to May 4, 2020

and directed the clerk’s office to send Widi a copy of the

notice regarding summary judgment that it sends to pro se

litigants. On May 4, Widi moved for an extension on the grounds

that he had been ill for over a month, believing it to be COVID-

19. Doc. No. 308. The next day, the United States assented to,

and the court granted, the requested relief, extending the

22 response deadline to May 18, 2020. May 5, 2020 Endorsed Order

Granting Motion to Extend.

On May 18 and again on June 23, 2020, Widi filed a second

and then a third motion for an extension on the grounds that

COVID-19 closures in his area affected his ability to conduct

necessary legal research. Doc. Nos. 310 & 312. Each time, the

court swiftly granted Widi’s motions, giving him an additional

30 days to respond to the United States’s motion for summary

judgment. May 19 and June 23, 2020 Endorsed Orders Granting

Motion to Extend. Upon granting the third request, however, the

court cautioned that it would “not grant further extensions

except upon a showing of good cause made in a timely motion.”

June 23, 2020 Endorsed Order Granting Motion to Extend.

On July 7, 2020, Widi notified the court for the first time

that he could not complete his summary judgment response because

the United States had failed to provide him copies of

conventionally filed exhibits. Doc. No. 313, at 1. Widi also

represented that he was not able to use alternative sources

because BOP staff had seized the videos when initially produced

in discovery and had refused to return those videos to Widi upon

completion of his sentence. Id. at 2. Widi therefore requested

a fourth 30-day extension of the deadline. Id. The United

States assented to the extension on the conditions that (1) it

would provide Widi with another copy of these exhibits and

23 (2) this would be the last extension Widi would request in

regard to objecting to summary judgment. Id. at 2. The court

granted a 30-day extension, emphasizing that “[n]o further

extensions of that deadline w[ould] be granted except upon good

cause shown.” July 16, 2020 Endorsed Order Granting Partially

Assented to Motion to Extend.

Instead of filing a response, Widi filed a motion to strike

the United States’s motion for summary judgment on August 6,

2020. Doc. No. 314. Therein, Widi declared under penalty of

perjury that he never received the conventionally filed videos,

and that the United States had provided him access to these

files through USAfx, a cloud-based file storage and sharing

platform. Widi Decl. (Doc. No. 314-1) ¶ 1. According to Widi,

the cloud folder only contained videos from the August 20 use-

of-force incident, those videos did not have sound, and there

was “no readily identifiable way of ascertaining whether those

videos match[ed] the exhibits” actually submitted to the court.

Id. ¶¶ 2-3. Additionally, he accused the United States of

materially breaching its discovery obligations. Id. ¶ 4. The

motion did not include a certification declaring that Widi had

sought the United States’s consent for the relief sought, or

that he had informed the United States of his technical

difficulties, before seeking to strike.

24 K. Recent attempts to send Widi copies of incident video footage through physical media On August 20, 2020, the United Stated filed its first

motion to extend the summary judgment response deadline. Doc.

No. 315. Therein, the United States asserted that it “was

unaware that Mr. Widi had experienced difficulties with USAfx

until he sought to strike the motion for summary judgment.” Id.

¶ 2. In its view, “[t]he interests of justice [would] not be

served by diverting the focus of this case into resolution [sic]

the controversy about what Mr. Widi did or did not receive.”

Id. ¶ 3. It thus proposed, “in the interest of clarity and

finality,” an altered briefing schedule. Id. The court granted

this request, in part, as follows:

By Aug. 28, 2020, the United States must overnight to plaintiff an electronic copy of each of the conventionally filed exhibits to Doc. No. 305 on a DVD or thumb drive, and the United States must simultaneously file a certificate of service identifying each file or document served, the manner of service, and the date of service.

Mr. Widi must contact counsel for the United States and file a notice in this case by September 4, 2020, executed under penalty of perjury, see 28 U.S.C. § 1746, stating when he received the documents or media at issue, and stating whether he encountered any difficulty accessing any of the files sent to him.

Mr. Widi’s objection to the summary judgment motion is due on September 14, 2020; no extensions of that deadline will be granted except upon a motion filed by that date, showing good cause.

The United States is granted until September 8, 2020 to file an objection to the motion to strike.

25 August 26, 2020 Endorsed Order Granting in Part and Denying in

Part Motion to Extend (formatting altered).

In accordance with this order, the United States filed a

certificate of service certifying that on August 27, 2020, it

had mailed via Federal Express overnight mail an encrypted thumb

drive containing electronic copies of specifically identified

conventionally filed exhibits to Widi’s address of record. Doc.

No. 316. For each video, the certificate also listed the number

of parts the video contained and whether or not the video

included sound. Id. Pursuant to DOJ policy, the United States

sent the password to access the thumb drive to Widi’s email

address of record. See id. n.1.

On Friday, September 4, 2020, Widi notified the court that

the United States had sent him “a chip card” instead of a DVD or

thumb drive, which prevented him from ascertaining whether the

United States had supplied the exhibits at issue. Doc. No. 317.

The next business day, the United States filed its objection to

the motion to strike. Doc. No. 318. In that objection, the

United States asserted that the “chip card” of which Widi

complained was in fact a USB thumb drive. Id. at 4. It also

noted that minutes after Widi filed his late-Friday notice, he

emailed the United States Attorney’s Office employee who had

sent him the password to the encrypted drive for help on how to

access the drive. Id. According to the United States, the USAO

26 employee responded to Widi’s email the next day and informed

Widi how to find, via an online search, instructions for the USB

drive. The USAO employee also sent a link to an instructional

video. Id.

On September 11, 2020, the court conducted a telephone

conference concerning Widi’s motion to strike. During that

call, the United States agreed to arrange for Widi to access the

video footage at issue at the United States Attorney’s Office in

New Jersey, if Widi so requested. Shortly thereafter, a USAO

paralegal sent Widi two emails offering assistance. United

States’s Notice of Attempts to Provide Summ. J. Exhs. (Doc. No.

319-1). The first email offered Widi the opportunity to

participate in a conference call with an information technology

specialist to walk him through the process of opening the drive

and accessing the documents. The second email gave Widi

specific directions for activating the executable file on the

previously delivered USB drive. Widi responded to neither

email, despite the paralegal’s written instructions to do so.

Id. The paralegal also attempted to contact Widi by telephone

but was unsuccessful and was unable to leave a message. Id.

Since the September 11 telephone conference, Widi has filed

no additional motions, notices, or responses with the court.

Additionally, the United States has not informed the court of

any attempts by Widi to contact its office regarding attempts to

27 access video footage exhibits central to the United States’s

motion for summary judgment. The court thus reviews the United

States’s unopposed motion for summary judgment on the undisputed

record currently before it, which includes conventionally filed

video footage (most clips with sound) documenting each use-of-

force incident described in Widi’s unverified complaint.

II. Applicable legal standard Summary judgment is appropriate when the moving party shows

that “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A genuine dispute is “one that must be decided

at trial because the evidence, viewed in the light most

flattering to the nonmovant, would permit a rational factfinder

to resolve the issue in favor of either party.” Baum-Holland v.

Hilton El Con Mgmt., LLC, 964 F.3d 77, 87 (1st Cir. 2020)

(quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,

8 (1st Cir. 1990)). “Facts are material when they have the

potential to affect the outcome of the suit under the applicable

law.” Id. (quoting Cherkaoui v. City of Quincy, 877 F.3d 14, 23

(1st Cir. 2017)).

“The party moving for summary judgment bears the initial

burden of showing that no genuine issue of material fact

exists.” Feliciano-Munoz v. Rebarber-Ocasio, 970 F.3d 53, 62

(1st Cir. 2020) (internal citation omitted). Then, “[the

28 nonmoving party] must respond to a properly supported motion

with sufficient evidence to allow a reasonable jury to find in

its favor with respect to each issue on which [it] has the

burden of proof.” Id. (quoting Prado Álvarez v. R.J. Reynolds

Tobacco Co., 405 F.3d 36, 39 (1st Cir. 2005)) (alteration in

original). In doing so, the non-movant “cannot rely on

‘conclusory allegations, improbable inferences, acrimonious

invective, or rank speculation.’” Theidon v. Harvard Univ., 948

F.3d 477, 494 (1st Cir. 2020) (quoting Ahern v. Shinseki, 629

F.3d 49, 54 (1st Cir. 2010)).

When ruling on such a motion, the district court must

“constru[e] the record in the light most favorable to the

nonmoving party and resolv[e] all reasonable inferences in that

party’s favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301

(1st Cir. 2014). The Supreme Court has explained, however, that

such a lens is required only if facts are genuinely in dispute.

See id. “When opposing parties tell two different stories, one

of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for

summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

Additionally, if the events in question are captured on video

and there is no genuine question regarding the video footage’s

authenticity or admissibility, the court must “view[] the facts

29 in the light depicted by the videotape.” Id.; see also McMullin

v. Peirson, No. 1:17-CV-312-LEW, 2019 WL 237382, at *1, 2019

U.S. Dist. LEXIS 7533, at *1 (D. Me. Jan. 16, 2019); Mitchell v.

Miller, 56 F. Supp. 3d 57, 61 (D. Me. 2014), aff’d, 790 F.3d 73

(1st Cir. 2015).

Such is the case here regarding whether BOP officers’ use

of force was in fact excessive given the circumstances. To

date, Widi has produced no evidence — not even a sworn

declaration — disputing the United States’s heavily evidenced

rendition of the material facts. The court therefore rejects

Widi’s version of events to the extent they are directly

contradicted by the video footage capturing each incident, and

instead defers to the facts as depicted in the video footage to

determine whether there are genuine disputes of material fact as

to Widi’s claims or the United States’s justification defense.

III. Analysis The United States contends that it is entitled to summary

judgment on two grounds. First, it argues that it is not liable

under the FTCA for the force used by BOP officers because the

force used, as evidenced by the undisputed factual record, was

reasonable and justified under applicable law. Second, it

asserts that it is not liable for BOP supervisors’ purported

failure to train, supervise, or discipline BOP officers because

the BOP’s decisions regarding training and supervision are

30 protected by the discretionary function exception to the FTCA.

Widi has submitted no objection or response to these arguments.

The court addresses each argued ground in turn.

A. FTCA claims based on officers’ use of force In the first of his two remaining sets of claims, Widi

contends that the United States is liable under the FTCA for the

intentional tortious conduct of its employees in subjecting him

to force and misapplying restraints during seven incidents in

2014 — each incident constituting a separate FTCA claim.

“The FTCA permits suits against the [federal] government

for torts caused by the wrongful acts of any government employee

while acting within the scope of his office or employment.”

Dominguez v. United States, 799 F.3d 151, 153 (1st Cir. 2015)

(citing 28 U.S.C. § 1346(b)(1)); see also 28 U.S.C. § 2674. In

addressing an FTCA action, federal district courts must apply

the law of the state in which the alleged tortious conduct

occurred, which, in this case, is New Hampshire. 28 U.S.C.

§ 1346(b). Where FTCA clams concern allegations of intentional,

excessive force by correction officers, federal courts in the

District of New Hampshire and elsewhere typically apply the

state law of battery. See, e.g., Martinez v. United States, No.

14-cv-231-LM, 2016 U.S. Dist. LEXIS 36973, at *18-19 (D.N.H.

Jan. 15, 2016), R&R adopted, 2016 U.S. Dist. LEXIS 36944 (D.N.H.

Mar. 22, 2016), aff’d, No. 16-1368 (1st Cir. Oct. 17, 2018).

31 In New Hampshire, “[a] defendant may be held liable for

battery if ‘(a) he [or she] acts intending to cause a harmful or

offensive contact with the person of the other or a third

person, or imminent apprehension of such a contact, and (b) a

harmful contact with the person of the other directly or

indirectly results.’” Martinez, 2016 U.S. Dist. LEXIS 36973, at

*19 (citing Rand v. Town of Exeter, 976 F. Supp. 2d 65, 75-76

(D.N.H. 2013); United Nat. Ins. Co. v. Penuche’s, Inc., 128 F.3d

28, 32 (1st Cir. 1997); Restatement (Second) of Torts § 13

(1977)). However, “[n]o person shall incur any civil liability

to another person by taking action against such person which

would constitute justification pursuant to [N.H. Rev. Stat.

§ 627].” N.H. Rev. Stat. § 507:8(d).

Under N.H. Rev. Stat. § 627, “justifiable conduct shall

constitute a complete defense to any civil action based on such

conduct.” Id. § 627:1; see also id. §§ 627:2 to 627:8

(identifying seven examples of justifiable conduct). Such

conduct includes the use of “non-deadly force upon another

person in order to defend himself or a third person from what he

[or she] reasonably believes to be the imminent use of unlawful,

non-deadly force by such other person,” so long as degree of

32 force used is that which the person reasonably believes to be

necessary for self-defense.4 Id. § 627:4, I. Additionally:

[a] law enforcement officer is justified in using non- deadly force upon another person when and to the extent that he reasonably believes it necessary to effect . . . [a] detention . . . unless he knows that the . . . detention is illegal . . . .

Id. § 627:5, I. Both the New Hampshire Supreme Court and this

court have found that the term “law enforcement officer,” as

used in chapters 625 to 651 of the New Hampshire Code, includes

prison officials. See Martinez, 2016 U.S. Dist. LEXIS 36973, at

*20-21 (finding that a prison guard’s actions were justified

under § 627:5, I); cf. State v. Tallard, 143 N.H. 228, 230, 723

A.2d 574, 575 (N.H. 1998) (construing the general meaning of

“law enforcement officer” as “including individuals who exercise

the police power to preserve peace and order, whether they be

state or local police officers, sheriffs, or correctional

officers” for purposes of understanding N.H. Rev. Stat.

§ 651:6). But see Hall v. Powell, No. 92-cv-141-JD, 1994 WL

421108, at *6 (D.N.H. Aug. 11, 1994) (expressing doubt, in

dicta, as to whether the law enforcement exception applied in

post-incarceration situations).

4 Such force is not justifiable, however, if the person provoked “the use of unlawful non-deadly force” by another with “a purpose to cause physical harm” or if the person “was the initial aggressor.” Id. § 627:4, I(a)-(b). 33 The United States contends that in each incident identified

by Widi, BOP officers’ use of force was legally justified, as

demonstrated by the undisputed factual record. The court has

reviewed the record for each incident and agrees that no

reasonable trier of fact viewing the undisputed factual record

in the light most favorable to Widi could find in Widi’s favor

on any of his claims. Accordingly, the court grants the United

States’s motion for summary judgment in its entirety.

1. Immediate use of force for refusal to comply with escort to the SHU (Claim 1) Widi alleges that on July 18, 2014, BOP officers subjected

him to an immediate use of force for refusing a hostile cell

environment, and maliciously and sadistically applied restraints

to Widi to harm and punish him. Am. Compl. (Doc. No. 226)

¶¶ 511-512. Additionally, Widi suggests in his allegations that

he did not become violent or display signs of imminent violence.

Id. ¶ 510. As noted above, however, the video surveillance

footage of this incident directly undermines Widi’s allegations

of malicious, tortious conduct.

The undisputed video footage shows that, despite Widi’s

assertions that he was not violent, he physically refused to

enter his cell and pushed back against the escorting officers,

instigating the use-of-force incident. Under these

circumstances, it would be reasonable for BOP officers to

perceive Widi’s conduct as an immediate, serious threat to BOP

34 staff, institution security, and good order. BOP policy

therefore authorized the officers to use immediate, rather than

calculated, force, to subdue Widi and regain control over his

person. The video footage further shows that the officers

reasonably tailored their immediate-use-of-force response to

Widi’s resistance. To the extent Widi suffered any injuries

despite his statement that he was “fine,” such injuries were

caused by a reasonable level of force used in response to Widi’s

physical non-compliance with officers’ orders.

Even when viewed in the light most favorable to Widi,

nothing in the video footage or any other evidence of record

tends to show an excessive or unreasonable use of force by any

BOP official in subduing Widi or applying restraints, given the

actions taken by Widi. Under the circumstances, the use of

force against Widi for refusing his housing assignment was

justified under New Hampshire law. The motion is properly

granted to the extent it targets Claim 1.

2. Calculated use of force in response to obstruction in Widi’s cell window (Claim 2) For his second claim, Widi alleges that on July 19, 2014,

BOP officers tortiously executed a calculated use of force

against him based on the false allegation that Widi had covered

his cell window. According to Widi, he voluntarily submitted to

hand restraints when approached by the force team to avoid

confrontation before being forcibly stripped of his clothing in

35 a shower area. Widi contends that these actions violated BOP

policies, specifically PS 5270.09, which establishes a

disciplinary process that provides for sanctions against inmates

who refuse a direct order, as well as PS 5566.06, which permits

the use of force only as a last resort for when an inmate

becomes violent or displays signs of imminent violence. Am.

Compl. (Doc. No. 226) ¶¶ 534-45. Widi is mistaken.

Video footage of the incident and contemporaneously drafted

memoranda from that day contradict the key elements of Widi’s

rendition of events. First, the video footage clearly shows

that there was in fact an obstruction in Widi’s cell window.

And though Widi voluntarily submitted to hand restraints, he

subsequently chose to ignore health and safety questions posed

by the medical examiner and the supervising officer, prompting

the forcible strip search. BOP memoranda documenting the use-

of-force incident explain why, in this specific circumstance,

the strip search was reasonable, not excessive: In short, the

supervising lieutenant determined that, because “Widi had been

hidden from the view of BOP personnel for a significant period

of time while his window was obstructed, . . . a full body

visual search was warranted to ensure that [he] had not harmed

himself or fashioned a weapon with which he may attempt to harm

other inmates or BOP staff.” McCoy Decl. (Doc. No. 305-13) ¶ 2.

36 Additionally, the force used during this incident did not

violate BOP policy, despite Widi’s assertions to the contrary.

PS 5270.09 – which generally outlines the BOP inmate discipline

program for imposing sanctions such as segregation or fines

after an inmate commits prohibited acts – does not prohibit

officers from using force to stop prohibited acts that threaten

prison security or order. See PS 5270.09 at 1. Widi points to

no provisions therein that specifically prohibit BOP officers

from using force. Indeed, the only time the policy mentions the

use of force is in the context of what details an officer must

include in his or her incident report, which then initiates

after-the-fact inmate disciplinary proceedings. Id. at 17.

Additionally, PS 5566.06 – which directly concerns the use

of force – does not restrict the use of force to a last resort

for when an inmate becomes violent or displays signs of imminent

violence. Rather, staff may use force “as a last alternative

after all other reasonable efforts to resolve a situation have

failed.” PS 5566.06 at 1. The policy also makes clear that BOP

staff may use force “when attempts to gain voluntary cooperation

form the inmate have not been successful.” PS 5566.06 at 2.

Such was the case here, when Widi refused to answer health and

safety questions posed by officers and medical staff.

Based on the video footage, contemporaneously filed

memoranda, and sworn testimony submitted, there is no doubt that

37 BOP officers were reasonably justified in using force to regain

control over Widi and ensure he had not harmed himself or posed

a threat to BOP inmates or staff. Additionally, there is no

evidence that BOP officers intentionally attempted to inflict

injury on Widi in the process. The United States is therefore

entitled to judgment as a matter of law on the FTCA claim

concerning this incident (Claim 2).

3. Calculated use of force in response to soft restraints becoming unsecure (Claim 3) For his third claim, Widi argues that BOP officers’

application of hard restraints was excessive and unreasonable

because officers knew or should have known that he had not

manipulated his restraints, he was not displaying signs of

violence or resistance, and he was physically injured during the

process. Widi contends in his complaint “that these actions

violated a BOP policy providing that hard restraints are not to

be used unless the inmate has a history of defeating soft

ambulatory restraints.” Am. Compl. (Doc. No. 226) ¶ 214.

The United States disagrees, noting that BOP policy –

specifically PS 5566.06 – gives discretion to BOP officers to

apply soft or hard restraints when “the inmate’s behavior

becomes increasingly aggressive and disruptive,” PS 5566.06 at

11, and that, under that policy, hard restraints may be used

“after soft restraints have proven ineffective, or a past

history of ineffectiveness exists,” regardless of whether an

38 inmate has a history of defeating soft restraints, id. at 8. It

thus contends that staff’s decision to substitute hard

restraints was not unreasonable under BOP policy, as “less than

one hour into a restraint detention designed as a ‘cool down’

measure following a protected period of belligerent and

combative conduct, a soft restraint was found unsecured.”

Def.’s Mot. for Summ. J. Mem. (Doc. No. 305-1, at 28).

Though video footage documents BOP officers’ calculated use

of force in applying hard restraints, no footage or admissible

testimony directly confirms that Widi manipulated his restraints

or that there otherwise was a “past history of ineffectiveness”

with respect to soft restraints. Nevertheless, the record does

contain evidence which, viewed together, supports such an

inference. First, the video footage capturing the officers’

initial attempts to secure Widi in soft restraints shows that,

after BOP officers took their time to apply the restraints,

Lt. McCoy personally inspected the restraints and declared them

properly applied. Aug. 20, 2014 Video Footage #2 (Doc. No. 350-

53); see also McCoy Decl. (Doc. No. 305-13) ¶ 3 (swearing, based

on her personal observations, that the soft restraints were

properly applied). Second, McCoy states in her declaration

that, prior to authorizing the use of hard restraints, the

“staff performing fifteen-minute restraints checks on Widi”

relayed to her that Widi had manipulated his soft restraints.

39 McCoy Decl. (Doc. No. 305-13) ¶ 3; McCoy July 19, 2014 Mem. re:

Unsecured Restraints (Doc. No. 305-18). This latter statement

constitutes hearsay evidence which, without independent

corroboration, is insufficient to prove the truth of the matter

asserted – specifically that Widi had in fact manipulated his

restraints or that his restraints had otherwise “proven

ineffective” under PS 5566.06. See Fed. R. Evid. 801 & 802

(setting forth the rule against hearsay). The statement may be

considered, however, as evidence of McCoy’s state of mind in

authorizing the calculated use of force. See Fed. R. Evid. 803

(setting forth permissible exceptions to the hearsay rule).

Widi offers no submission of evidentiary quality to support

his assertion that his soft restraints were not properly

secured. Nor has he submitted anything of evidentiary quality

suggesting that Lt. McCoy had reason to doubt the reports of her

subordinates or a further duty to investigate on her own. Based

on her personal supervision of the application of Widi’s

restraints, the report of her subordinates, and her personal

interactions with Widi that day, McCoy reasonably viewed the

circumstances as justifying the progressive move to hard

restraints to regain control over Widi. Thus, even if a genuine

dispute of material fact existed as to whether officers had

properly secured Widi’s restraints earlier that day, no

reasonable jury could find that McCoy’s decision to apply hard

40 restraints was unreasonable given the circumstances known to

her. Additionally, no reasonable jury could view the videotape

documenting Widi’s resistance during the incident and find that

BOP officers used disproportionate force in their attempts to

completely restrict the movement of Widi’s arms and legs while

applying hard restraints. The medical records from after the

incident bolster this conclusion, as they further show that,

despite Widi’s alleged complaints of pain as a result of the use

of force, he suffered, at worst, minor injuries from the force

used and did not need an adjustment to his restraints.

On this record, BOP staff were indisputably justified in

their decision to use hard restraints, their application

thereof, and the proportional force used to counter Widi’s

physical aggression and resistance. The court thus enters

summary judgment on this claim (Claim 3).

4. Calculated use of force in response to removal of the Martin chain and hard restraints (Claim 4) For his fourth claim, Widi argues that, after he slipped

his Martin chain, BOP officers wrongly used force to reapply his

hard restraints because the hard restraints used were causing

medical problems and because he was not displaying signs of

violence. Am. Compl. (Doc. No. 226) ¶¶ 577-82. Additionally,

he argues that BOP officers re-secured the restraints too

tightly, further exacerbating the harm to his health. Id.

41 As discussed above, however, BOP policy does not restrict

the use of force to a last resort when an inmate becomes violent

or displays signs of imminent violence; rather, it permits the

use of hard restraints when an inmate’s behavior becomes

increasingly aggressive and disruptive, as was the case with

Widi here. See PS 5566.06. Widi concedes in his complaint that

he deliberately slipped his Martin chain. Am. Compl. (Doc. No.

226) ¶ 217. The video footage of the incident further documents

that after Widi surrendered the potential weapon and was

restrained by BOP officers, medical staff confirmed that he had

suffered no injuries as a result of his hard restraints.

The undisputed evidentiary record shows that BOP officers

acted justifiably in assembling a calculated-use-of-force team

and re-securing Widi’s hard restraints. Summary judgment in

favor of the United States is therefore appropriate on this

claim (Claim 4).

5. Immediate use of force in response to obstruction of cell window and food tray slot (Claim 5) For his fifth claim, Widi contends that BOP officers’ use

of chemical agents and physical force on August 20 was excessive

and wrongful because he did not display signs of violence and

was locked in a SHU cell alone where he did not pose a danger to

anyone. Am. Compl. (Doc. No. 226) ¶¶ 607-08. Widi’s version of

events, however, is directly contradicted by the undisputed

video evidence of record.

42 The surveillance video footage shows that on that day, Widi

had covered his cell window, obstructing himself and the

interior of his cell from view; a BOP official attempted to

communicate with Widi before knocking on the cell; and a BOP

lieutenant attempted to see inside Widi’s cell through the food

tray slot – all of which occurred minutes before chemical agents

were deployed. The video footage also shows that Widi displayed

signs of imminent violence to himself and others, which

increased throughout the duration of the incident. For example,

when officers first attempted to use a broom stick to knock at

the mattress obstructing Widi’s food tray slot, Widi pushed back

hard against the officers with the broom, knocking an officer to

the floor and breaking the broom handle. Widi also retained

part of the broom handle in his cell and did not surrender the

weapon, thus increasing the risk of imminent harm to himself and

to BOP officers. It was only after these events that BOP

officers infused pepper spray into Widi’s cell.

BOP policy clearly establishes that the use of such force,

including chemical agents, was not excessive or unreasonable

under these circumstances. Under PS 5566.06:

The Warden may authorize the use of chemical agents or non-lethal weapons only when the situation is such that the inmate:

a. Is armed and/or barricaded; or,

b. Cannot be approached without danger to self or others; and,

43 c. It is determined that a delay in bringing the situation under control would constitute a serious hazard to the inmate or others, or would result in a major disturbance or serious property damage.

See also 28 C.F.R. § 552.25 (corresponding regulation).

Here, the situation involving Widi, as documented by the

undisputed evidentiary record, cleared all three criteria for

the use of chemical agents: Widi was potentially armed with a

broomstick and had barricaded himself in his cell, Widi could

not be approached without danger to BOP officers, and BOP

officers had determined that a delay in bringing the situation

under control would constitute a serious hazard to Widi’s

health, especially in light of a recent suicide attempt. See

Hess Aug. 20, 2014 Mem. (Doc. No. 305-49) (documenting

incident). As a result, the supervising lieutenant reasonably

viewed the circumstances as an emergency and authorized the use

of force to regain control over Widi.

There is no genuine dispute of material fact as to whether

force used during this incident was excessive. The record

indisputably shows that it was reasonable, justified, and in

accordance with BOP policy given the emergency circumstances.

The court grants the motion for summary judgment in the United

States’s favor on this claim (Claim 5).

44 6. Immediate use of force during decontamination in shower area (Claim 6) For his sixth claim, Widi asserts that BOP officers

punitively used force against him while he was being

decontaminated of chemical agents in the shower area, thereby

continuing his suffering from the agent’s adverse effects. Am.

Compl. (Doc. No. 226) ¶¶ 631-636. Widi argues that BOP officers

knew or should have known that the failure to properly

decontaminate him would cause him harm, and that the immediate

use of force was excessive, disproportionate, and avoidable had

officers properly decontaminated Widi and his clothing. Id.

¶ 636.

The undisputed video footage capturing the entire incident

undermines Widi’s narrative of events. It shows that Widi, once

removed to the shower area, struggled and argued with officers

while they tried to hold him still. BOP officers then responded

by placing Widi against a wall, face towards the wall, to

forcibly cut off Widi’s chemical-agent-contaminated clothes.

When medical staff attempted to examine Widi, he pushed away the

restraining officers and yelled in anger. The officers

responded to the potential threat by throwing Widi to the

ground.

The video footage further shows that the officers attempted

to return Widi to the wall after he calmed down, but Widi

continued to resist. And in that struggle, an officer’s

45 contaminated glove met Widi’s face. Despite Widi’s assertions

to the contrary, nothing in the video suggests that BOP officers

used excessive force or acted with punitive intent. Though

Widi’s antagonism may be explained in some part by the pain of

being exposed to a chemical agent, this does not belie the

documented fact that he displayed physical signs of imminent

violence and repeatedly resisted the officers’ attempts to

properly decontaminate him. Under these circumstances, no

reasonable juror viewing the video footage could find that the

BOP officers used excessive or unreasonable force to restrain

Widi or counter his resistance. This conclusion is further

buttressed by the findings of the after-incident medical exam,

which only recorded Widi biting his own tongue as an injury.

Viewing the evidence in the light most favorable to Widi,

BOP officers were justified in their use of force as a response

to Widi’s aggression, even though the use of force resulted in

one officer touching Widi’s face with a contaminated glove.

Additionally, they were justified in their application of leg

restraints. The court grants the motion for summary judgment in

the United States’s favor on this claim (Claim 6).

7. Calculated use of force to restrain Widi after decontamination (Claim 7) For his seventh claim, Widi contends that after the

chemical-agent incidents described above, BOP officers

maliciously and sadistically applied hard restraints, causing

46 him pain, lacerations, contusions, and abrasions. Am. Compl.

(Doc. No. 226) ¶¶ 231, 680. Again, he alleges (erroneously)

that the use of restraints was inappropriate because, he “had

not displayed imminent signs of violence” and the use of hard

restraints was inappropriate because he “did not have a history

of defeating the hard restraints and the black-box was not

approved restraint equipment.” Id.; see also Part III.A.3

(discussing how BOP policy does not require a history of

defeating restraints).

Despite these allegations, the undisputed video footage

from this incident show that the officers acted reasonably in

applying restraints to Widi. This footage shows that after the

disruptive and aggressive events described in Claims 5 and 6:

BOP officers placed Widi in a suicide smock and hard ambulatory

restraints; a BOP nurse examined Widi; and Widi’s restraints

were loosened at the nurse’s request. Thereafter, Widi was

reported as having good distal circulation, sensation, and skin

color. In taking these actions, BOP officers abided by BOP

policies authorizing the application of restraints and mandating

medical staff oversight. See PS 5566.06 at 11.

BOP records for that day further document that officers

checked on Widi every fifteen minutes while he was restrained.

See Aug. 20, 2014 Fifteen Minute Check Form (Doc. No. 305-5);

Two-Hour Lt. Restraints Check Form (Doc. No. 305-64). Within

47 hours, a BOP lieutenant approved the progressive removal of

Widi’s restraints. Two-Hour Lt. Restraints Check Form (Doc. No.

305-64). Widi was freed from all restraints by the following

morning, in accordance with BOP policy. Aug. 20, 2014 Fifteen

Minute Check Form (Doc. No. 305-5).

In sum, the United States has sufficiently shown, based on

the undisputed evidentiary record, that the force used by BOP

officers was reasonable and legally justified. Widi, by

comparison, has pointed to no evidence or legal authority that

supports his excessive force claim at this procedural stage.

Accordingly, summary judgment in the United States’s favor is

appropriate.

B. Supervision-based claims In his second set of claims, Widi contends that the United

States is also liable for BOP supervisors’ failure to train,

supervise, and discipline the officers in advance of the

immediate-use-of-force incidents described above. Am. Compl.

(Doc. No. 226) ¶¶ 503, 504, 613, 614, 638, 639. The United

States argues that these claims should be dismissed because

supervisory decisions on the training officers in advance of

immediate uses of force fall within the discretionary function

exception to the FTCA, which strips this court of jurisdiction

to consider Widi’s remaining supervisory liability claims. The

48 United States is correct that this court lacks jurisdiction over

such claims.

The FTCA excepts from its limited waiver of sovereign

immunity “[a]ny claim . . . based upon the exercise or

performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal agency

or an employee of the government, whether or not the discretion

involved be abused.” 28 U.S.C. § 2680(a). To determine whether

the discretionary function exception applies, courts apply a

familiar framework based on two questions, see United States v.

Gaubert, 499 U.S. 315, 328 (1991):

The first question is whether the conduct [that caused the alleged harm] can be called “discretionary.” Conduct cannot be called discretionary if a federal “‘statute, regulation, or policy’ actually dictates ‘a course of action’” — because in that scenario, the federal employee “has no choice but to follow the ‘directive.’”

[] The second question (asked only if the conduct involves an element of discretion) is whether “‘the exercise or non-exercise of the granted discretion is actually or potentially’ affected by” legitimate “policy-related judgments,” . . . . [I]mportantly, when a federal statute, regulation, or policy lets a government agent exercise discretion, a court presumes the agent’s acts involve policy.

Reyes-Colón v. United States, 974 F.3d 56, 58-59 (1st Cir. 2020)

(internal citations omitted) (formatting altered). “If the

answer to each question is yes, the discretionary-function

exception applies, and the sovereign-immunity doctrine precludes

49 suit on the at-issue claims.” Id. (citing Mahon v. United

States, 742 F.3d 11, 14 (1st Cir. 2014)).

Here, the United States has sufficiently shown that BOP

decisions regarding training of officers in advance of immediate

uses of force is both discretionary and affected by policy-

related judgments. First, the statute ordering the BOP to

provide for the safekeeping, care, . . . subsistence, . . .

protection, instruction and discipline of all persons charged

with or convicted of offenses against the United States” does

not dictate the manner in which BOP must fulfill these

supervisory duties. 18 U.S.C. § 4042(a)(1)-(3). The extent of

training, supervision, or disciplinary actions required of BOP

officers appears to be entirely at the discretion of BOP

managers and the warden. And the discretion and judgment

required in prison circumstances is precisely the reason courts

have accorded a high degree of deference to authorities in the

means they may use to fulfill these statutory duties. See,

e.g., Montez ex rel. Estate of Hearlson v. United States, 359

F.3d 392, 396 (6th Cir. 2004); Echevarria-de-Pena v. United

States, No. 12-22248-CIV, 2013 WL 616932, at *4, 2013 U.S. Dist.

LEXIS 22067, at *11-12 (S.D. Fla. Feb. 19, 2013) (“There is no

doubt that BOP exercises discretion in how it trains its

employees . . . . This decision is also grounded in

considerations of public policy because decisions as to how to

50 train employees necessarily involve the allocation of BOP’s

economic resources.”).

To date, Widi has not identified a statute, regulation, or

policy that precluded or constrained BOP supervisors’ judgment

in determining whether any particularized training, supervision,

or disciplinary action was required in advance of immediate uses

of force. Nor has he cited any legal matrix – statute,

regulation, or policy – that in fact dictates a prescribed,

mandatory, and specific course of conduct that supervisors

should have followed but did not abide by. To the contrary, the

only BOP policies Widi cites – the BOP regulations and policies

concerning inmate disciplinary programs and the use of force –

describe required training in very general and discretionary

terms.

Under BOP PS 5566.06 (use of force), for example, BOP

training must cover, at minimum “communication techniques,

cultural diversity, dealing with the mentally ill, confrontation

avoidance procedures, the application of restraints (progressive

and hard), and reporting procedures.” Id. at 23. “The Warden

of each institution shall determine how many staff should be

trained in confrontation avoidance procedures and forced cell

move techniques. At a minimum, these staff shall be trained on

an annual basis. . . . Training should also include specific

information pertaining to special situations.” Id. Whether

51 additional training, supervision, or disciplinary action is

required is entirely at the discretion of the warden. See also

PS 5270.09 (inmate disciplinary program policy, which does not

set forth training requirements for BOP officers who use force).

Although these policies outline some guiding principles and

a few minimum requirements, nothing therein divests BOP

supervisory personnel of the responsibility to exercise

professional judgment in training BOP officers in advance of a

use of force or deciding whether training beyond what is

minimally required is warranted. “As a matter of common sense,

and as a matter of legal presumption, Gaubert, 499 U.S. at 324,

the exercise of this discretion is clearly susceptible to

fundamental policy-related judgments regarding the safe, secure,

and efficient operation of a prison.” March 5, 2019 Order

Granting Mot. to Dismiss (Doc. No. 290, at 75) (aggregating

numerous examples of “inherent and intractable complexity of

daily prison operations” and the “often instantaneous and

intuitive judgments that must be made in the minute-to-minute

management of a volatile and highly restrained inmate

population”). Widi’s claims based on such supervisory conduct

are therefore barred under the discretionary function exception

to the FTCA. Because this court lacks subject matter

jurisdiction over the claims at issue, it must dismiss the

remainder of Widi’s supervisor-based liability claims.

52 IV. Conclusion For the foregoing reasons, the court grants the United

States’s motion for summary judgment (Doc. No. 305). Judgment

shall be entered accordingly, and the case shall be closed.

SO ORDERED.

_______________________________ Steven J. McAuliffe United States District Judge

November 30, 2020

cc: David J. Widi, Jr. Frances S. Cohen, Esq.