United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
MICHAEL J. ALOI UNITED STATES MAGISTRATE JUDGE
August 31, 2016, the pro se Plaintiff, an inmate
then-incarcerated at FCI Hazelton in Bruceton Mills, West
Virginia, initiated this case by filing a
Bivens civil rights complaint against the
above-named defendants, along with a motion to proceed as a
pauper and supporting documents. ECF Nos. 1, 2, 3, & 4.
On September 6, 2016, the Plaintiff was granted permission to
proceed as a pauper but directed to pay an initial partial
filing fee. ECF No. 6. Plaintiff paid the requisite fee on
October 3, 2016. ECF No. 9.
October 4, 2016, Magistrate Judge James E. Seibert conducted
a preliminary review of the file, determined that summary
dismissal was not appropriate, and directed the United States
Marshal Service to serve the complaint. Accordingly, an to
answer was entered. ECF No. 10. On November 29, 2016, the
Defendants moved for a consolidated response date. ECF No.
19. By Order entered the following day, Defendants'
motion was granted. ECF No. 20. On December 9, 2016,
Plaintiff objected to the Order granting the consolidated
response date. ECF No. 22. On January 20, 2017, the
Defendants moved for an extension of time. ECF No. 27. By
Order entered January 24, 2017, the Defendants were granted
the extension. ECF No. 28. On February 10, 2017, the
Defendants filed a Motion to Substitute Party and Clarify
Electronic Docket. ECF No. 31. By Order entered the same day,
the Defendants' motion was granted and the docket
corrected to reflect the full names of the substituted
parties. ECF No. 32.
March 1, 2017, the Defendants filed a Motion to Dismiss or
Alternatively, Motion for Summary Judgment, along with a
memorandum in support, attaching numerous affidavits. ECF
Nos. 34 & 35. On March 15, 2017, because Plaintiff was
proceeding pro se, the Court issued a
Roseboro Notice. ECF No. 38. On March 20, 2017,
Plaintiff filed his response in opposition, styled as Motion
for Summary Judgment. ECF No. 39.
Order entered on September 15, 2017, this case was reassigned
from Magistrate Judge James E. Seibert to the undersigned. On
January 16, 2018, an Order to seal Plaintiff's response
to Defendants' dispositive motion was entered. ECF No.
case is before the undersigned for a Report and
Recommendation (“R&R”) on Defendant's
Contentions of the Parties
complaint, Plaintiff raises claims of falsified records
containing a false detainer, racism, and retaliation,
alleging that his Case Manager, Defendant Angela Gyorko
(“Gyorko”) lodged a non-existent detainer against
him and then cursed at him when he protested and issued him 4
misconducts. ECF No. 1 at 7. Plaintiff contends that his Unit
Manager, Defendant Lori Smith (“Smith”) defended
Gyorko's placement of the detainer, thereby supporting
the placement of false statements into Plaintiff's
central file, although Smith did throw out two of the
misconducts. Id. at 8. Further, Plaintiff contends
that FCI Hazelton's Associate Warden, Defendant James
Dunn (“Dunn”) opposed his November 2015
application into a faith-based religious program, Life
Connections Program out of racism, compelling Plaintiff to
exhaust the administrative remedy process. Id.
Finally, Plaintiff contends that Defendant James Fahey
(“Fahey”) falsely claimed that Plaintiff had
pending charges in his PSI, in order to corroborate
Gyorko's false statements. Id. at 7 - 8.
Plaintiff alleges that all of these acts were done with the
detrimental and malicious purpose of impeding his inmate
programming; raising his institutional point score to prevent
his transfer to institutions with better educational and
vocational opportunities; and/or to prevent his entry into
RDAP and a halfway house. Id. at 9.
Plaintiff maintains that he has filed a BP-8, a BP-9, and a
BP-10 to exhaust his administrative remedies with regard to
his claims. Id. at 4 - 5 and ECF 1-1 at 3 - 7.
Elsewhere, he contends he also filed a BP-11. ECF No. 1 at 6.
relief, he requests $100, 000.00 per defendant per violation
of false and fraudulent statements and deprivation of due
process for a total amount of $800, 000.00.” Further,
he requests a “transfer within my region.”
Id. at 9.
Defendants' Motion to Dismiss, or in the Alternative,
for Summary Judgment
argue that the complaint should be dismissed or summary
judgment be granted in their favor because:
1) Plaintiff failed to exhaust his administrative remedies
before filing suit. ECF No. 35 at 9 - 11.
2) Even if Plaintiff had administratively exhausted his
claims, his factual allegations are wholly unsupported, thus
he has not presented cognizable claims. Id. at 12
3) The Privacy Act's remedial safeguards preclude
separate Bivens liability; therefore,
Plaintiff's allegations that his inmate file contains
inaccuracies is not a cognizable Bivens claim.
Id. at 15 - 18.
4) Even if Plaintiff had properly classified his allegations
regarding inaccuracies in his inmate file as a Privacy Act
violation, he has not pled a cognizable Privacy Act claim,
because the only proper defendant in a Privacy Act lawsuit is
the agency that maintains the allegedly mishandled records.
Id. at 18 - 19.
5) Further, the Privacy Act requires that an aggrieved party
establish that he has suffered some tangible economic loss,
which Plaintiff has not done; therefore, even if Plaintiff
had properly filed a Privacy Act lawsuit against the Bureau
of Prisons (“BOP”), he has not pled a cognizable
Privacy Act claim. Id. at 19 - 20.
5) Plaintiff has not established that the Defendants
discriminated against him. Id. at 20 - 21.
6) Plaintiff has not stated a viable retaliation claim.
Id. at 21 - 23.
7) Plaintiff has not presented any viable constitutional
claims; therefore, the Defendants are entitled to qualified
immunity. Id. at 23 - 24.
Defendants also attach affidavits from Howard Williams, Legal
Assistant and Administrative Remedy Clerk at the BOP's
Mid-Atlantic Regional Office (“Williams Decl.”);
from Defendant Angela Gyorko, Case Manager at FCC Hazelton
(“Gyorko Decl.”); from Defendant Lori Smith, Unit
Manager at FCC Hazelton (“Smith Decl.”); from
Defendant James Dunn, Associate Warden at FCC Hazelton
(“Dunn Decl.”); and from Defendant James Fahey,
Case Manager at FCC Hazelton (“Fahey Decl.”), in
support of its arguments. See ECF Nos. 35-1, 35-2,
35-3, 35-4, & 35-5.
Plaintiff's Response in Opposition, styled as Motion
for Summary Judgement
reiterates his arguments without addressing the
Defendants' arguments on the same. He requests that the
Court grant summary judgment in his favor. ECF No. 39 at 1.
He attaches a copy of an Inmate Request to Staff [ECF No.
39-1 at 1]; a copy of a Department of Justice
(“DOJ”) Inmate Skills Development Plan [ECF No.
39-1 at 2]; and a copy of his BOP Sentence Monitoring
Computation Data [ECF No. 39-1 at 3 -5], arguing that these
documents prove his claims. ECF No. 39 at 3. His response
makes no mention of the Defendants' arguments regarding
his failure to administratively exhaust his claims before
filing suit, nor does he address the Defendants' argument
regarding the Privacy Act.