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Townsend v. Gyorko

United States District Court, N.D. West Virginia

January 16, 2018

LEROY TOWNSEND, Plaintiff,
v.
ANGELA GYORKO, Manager; LORI SMITH, Unit Manager; JAMES FAHEY, Manager; and JAMES DUNN, Associate Warden, Defendants.

          KEELEY JUDGE

          REPORT AND RECOMMENDATION

          MICHAEL J. ALOI UNITED STATES MAGISTRATE JUDGE

         I. Procedural History

         On August 31, 2016, the pro se Plaintiff, an inmate then-incarcerated at FCI Hazelton[1] in Bruceton Mills, West Virginia, initiated this case by filing a Bivens[2] 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.

         On 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.

         On 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.

         By 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. 45.

         This case is before the undersigned for a Report and Recommendation (“R&R”) on Defendant's dispositive motion.

         II. Contentions of the Parties

         A. The Complaint

         In his 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.

         The 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.

         As 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.

         B. Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment

         Defendants 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.

         The 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.

         C. Plaintiff's Response in Opposition, styled as Motion for Summary Judgement

         Plaintiff 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.

         III. Stan ...


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