United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber, Senior United States District Judge.
before the court is “Plaintiff's Objections to the
Magistrate's Findings and Recommendations.” ECF No.
72. Plaintiff objects to Magistrate Judge Omar J.
Aboulhosn's Proposed Findings and Recommendation
(“PF&R”), which recommended that this court
grant Defendants' Motion to Dismiss or in the
Alternative, Motion for Summary Judgment, ECF No. 59, and
dismiss plaintiff's Complaint. ECF No. 69.
sued 12 correctional officers (“Defendants”) on
October 27, 2016 alleging violations of his constitutional
and civil due process rights under Bivens v. Six Unknown
Federal Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). ECF No. 3. Specifically, plaintiff alleges
defendants withheld his personal belongings - newspapers,
magazines, books, and family pictures - while he was in
solitary confinement (“Special Housing Unit” or
“SHU”) of Federal Correctional Institution,
McDowell (“FCI McDowell”). ECF No. 3, p. 4-5.
November 16, 2016, plaintiff filed a “Motion Requesting
Leave to Amend Complaint” to (1) modify the names of
defendants and (2) provide additional factual details
regarding plaintiff's allegations. ECF No. 26. The Motion
was accompanied by plaintiff's First Amended Complaint
(“FAC”). ECF No. 29. Magistrate Judge Aboulhosn
granted plaintiff's motion and directed that the FAC be
filed. ECF No. 28. The PF&R extensively details the
factual modifications in the FAC. ECF No. 69, p. 3-4. Of
note, plaintiff's FAC includes affidavits of other FCI
McDowell inmates to illustrate that other SHU inmates were
provided additional items of mail, inconsistent with the SHU
Rules and Regulations, and thus plaintiff was targeted
unfairly. ECF No. 66-1, pp. 6-12.
months later, defendants filed a Motion to Dismiss, or in the
Alternative, Motion for Summary Judgment and accompanying
Memorandum of Law in Support. ECF Nos. 59 and 60. Magistrate
Judge Aboulhosn recommended that defendants' motion be
granted on July 24, 2017. ECF No. 69.
was incarcerated at FCI McDowell from February 17, 2016 to
December 1, 2016. ECF No. 69-2. Plaintiff was placed in SHU
on March 9, 2016, after refusing to voluntarily change prison
cells. Upon placement in SHU, plaintiff received a copy of
the SHU Rules and Regulations and signed a Receipt and
Acknowledgement Form. ECF No. 59-1, pp. 62-63. SHU Rules and
Regulations limit the personal belongings an inmate may
possess. ECF No. 59-1, pp. 62-63, 65. Importantly, the
Regulation lists “Authorized Items” to include
“2 paperback books (book cart only)” and
“Mail (received in SHU only) - 10 pieces.” ECF
No. 59-1, pp. 62-63, 65. Defendants state that limitations on
personal property in SHU cells are necessary because of
“fire safety, security, and sanitation/housekeeping
issues based upon limited cell space in SHU.” ECF No.
60, p. 5.
occasions in March 2016, plaintiff asked SHU correctional
officer defendants, J. Moore and B.J. Johnson, to explain why
he was not receiving his personal property since placement in
SHU. FAC at ¶ 50-52. Both correctional officers
allegedly responded that consistent with a memorandum signed
by FCI McDowell's warden, B.J. Johnson, (“Warden
Memorandum”), plaintiff's belongings were being
retained by FCI McDowell until his release from SHU.
Id. Plaintiff requested a copy of the Warden
Memorandum but never received a copy. Id.
do not dispute that plaintiff never received a copy of this
Warden Memorandum (or affirm or deny that any Warden
Memorandum exists) but instead state that defendants'
actions complied with SHU Rules and Regulations, for which
the plaintiff signed a Receipt and Acknowledgement Form. ECF
No. 59-1, pp. 62-63, 67.
remained in SHU at FCI McDowell until his transfer to FCI
Forrest City in Arkansas on December 1, 2016. Despite
plaintiff's belief that he was treated unfairly in SHU,
upon transfer, plaintiff's personal property was
inventoried and found to be consistent with SHU policy and
included two books, legal materials, and 20 photographs (more
than SHU policy). ECF No. 59-1, pp. 68-69.
STANDARD OF REVIEW
Magistrate Judge makes only a recommendation to this court.
The recommendation bears no presumptive weight, and it is
this court's responsibility to make a final
determination. See Mathews v. Weber,423 U.S. 261
(1976). The court is charged with making a de novo
determination of any portion of the PF&R to which a
specific objection is made. The court may accept, reject, or
modify, in whole or in part, the recommendation made by the