United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE.
November 28, 2016, the pro se Plaintiff, an inmate
then-incarcerated at FCI Gilmer, in Glenville, 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 a motion for appointed
counsel. ECF Nos. 1, 2, & 3. By separate s entered
December 20, 2016, Plaintiff was granted permission to
proceed as a pauper and his motion for appointed counsel was
denied. ECF Nos. 9 & 10. Plaintiff paid his initial
partial filing fee on January 3, 2017. ECF No. 12.
March 15, 2017, Magistrate Judge James E. Seibert conducted a
preliminary review of the complaint, determined that summary
dismissal was not warranted at that time and directed the
Defendants to answer the complaint. ECF No. 15. The Clerk of
Court was directed to issue 60-day summonses and forward
copies of the complaint to the United States Marshal Service
to effect service of process upon the Defendants.
Id. On May 3, 2017, the summonses for Defendants
Potter, Kirkland, and Saad were returned executed. ECF Nos.
21, 22, & 23. That same day, the summonses for Defendants
Wagner and Rice were returned unexecuted. ECF No. 24 &
17, 2017, the Defendants Saad, Potter, and Kirkland filed a
Motion to Dismiss, or, Alternatively, for Summary Judgment,
along with a memorandum in support, attaching certain
exhibits. ECF Nos. 27 & 28. Because Plaintiff was
proceeding pro se, a Roseboro Notice was
issued on May 30, 2017. ECF No. 29. On June 8, 2017,
Plaintiff filed his response in opposition, styled as a
Motion to Hold 28 U.S.C. § 1331 Bivens Suit in
Abeyance Pending 28 U.S.C. § 2241 Outcome. ECF No. 33.
29, 2017, Defendants Wagner and Rice filed a Motion to
Dismiss, attaching affidavits and other documents, and a
memorandum in support. ECF Nos. 35 & 36. Because
Petitioner was proceeding pro se, on July 5, 2017,
another Roseboro Notice was issued. ECF No.
Order entered September 15, 2017, this case was reassigned
from Magistrate Judge James E. Seibert to the undersigned.
November 6, 2017, Pham filed a "Supplement to Plaintiffs
Petition for Federal Civil Rights Complaint (Bivens
Action)" with numerous attachments. ECF No. 43.
case is before the undersigned for review, Report and
Recommendation pursuant to LR PL P 2.
complaint, Plaintiff, a Vietnamese citizen who contends he
has a "non-deportable status," raises claims of
Fifth and Fourteenth Amendment due process violations
regarding his miscalculated custody classification as a
deportable alien. ECF No. 1 at 7 and ECF No. 1-1. He requests
relief pursuant to 28 U.S.C. § 1331; 28 U.S.C. §
2243, 5 U.S.C. § 702, and the All Writs Act, 28 U.S.C.
§1651, alleging that the Bureau of Prisons'
("BOP") actions have denied him eligibility for
UNICOR work; wrongfully put a Public Safety Factor
("PSF") of "Deportable Alien" on his
record, causing him to lose his UNICOR job in the prison;
preventing him from eligibility for the Residential Drug
Abuse Treatment Program ("RDAP"); barring him from
early release to a Residential Reentry Center
("RRC")/Halfway House; and incarcerating him over
five hundred miles away from his family. ECF No. 1 at 9.
Plaintiff maintains that he has exhausted his administrative
remedies with regard to his claims. Id. at 4 - 5. He
attaches copies of his grievances; a copy of a PSF; a copy of
28 U.S.C. § 636; a copy of his Security/Designation
Data; and what appears to be several unidentified incomplete
excerpts from case law. See ECF No. 1-1.
relief, Plaintiff seeks injunctive relief in the form of a
directive from this Court to make the BOP remove the PSF from
his record; transfer him to a minimum security prison closer
to his family; permit him to participate in a RDAP program;
permit him to be released to a RRC/Halfway house; and place
him in a union work facility. Further, he seeks $250, 000.00
"for punitive damages and mental anguish" from each
of the named defendants. ECF No. 1 at 9 and ECF No. 1-1 at 1.
Defendants Saad, Potter, and Kirkland's Motion to
Dismiss or in the Alternative, Motion for Summary
their dispositive motion, Defendants Saad, Potter, and
Kirkland allege that the case should be dismissed or summary
judgment granted in their favor because:
1) Plaintiff failed to administratively challenge his
eligibility for prison employment before filing this case
[ECF No. 28 at 6];
2) even if all of Plaintiff s claims were administratively
exhausted, his complaint fails to state a legally cognizable
Bivens claim against Defendants Saad, Potter, and
Kirkland [id. at 8];
3) because Plaintiff fails to state viable constitutional
claims, the Defendants are entitled to qualified immunity
[id. at 10];
4) the BOP has full discretion to classify inmates and
federal inmates have no constitutional right to a specific
custody classification [id at 11];
5) the BOP has extensive discretion to determine inmates'
eligibility to participate in rehabilitative programs; Pham
has no constitutional right to participate in RDAP and his
assertion that he was precluded from doing so fails to state
a constitutional claim [id. at 12];
6) the BOP has broad discretion to decide where inmates will
be incarcerated and federal inmates have no constitutional
right to be incarcerated in a particular place, therefore,
Pham's request to be transferred or released to a RRC or
halfway house do not present constitutional claims
[id. at 13];
7) federal inmates have no constitutional right to employment
and therefore, Pham's claim in this regard fails to state
a viable Bivens claim [id. at 15]; and
8) Plaintiff has not alleged that he suffered any physical
injury, thus he is precluded from recovering damages for
emotional distress. Id. at 17.
Plaintiffs Response in Opposition
response, styled as a "Motion to Hold 28 U.S.C. §
1331 Bivens Suit in Abeyance Pending 28 U.S.C. § 2241
Outcome," Plaintiff reiterates his arguments and
attempts to refute Defendants Saad, Potter, and
Kirkland's on the same, attaching a number of documents.
ECF No. 33 at 2 - 5; ECF No. 33-1; ECF No. 33-2; ECF No.
33-3; and ECF No. 33-4. In response to their argument that he
because he claimed no physical injury he cannot recover money
damages for mental anguish alone, he contends that because he
is not a citizen, "therefore this automatically becomes
a Diversity Claim, with a minimum for jurisdictional reason,
in Federal Court of $75, 000.00 per person/claim. This also
becomes a Punitive Damages Claim, found on the Circuit
accepted multiplier of four (4) times the amount of
Compensation, thus $300, 000.00 per person/claim
sought." ECF No. 33 at 1.
he requests that that the instant Bivens action be
placed in abeyance, explaining that
the parallel case under 28 U.S.C. § 2241, in which their
[sic] is overlapping discovery, testimonial affidavits and
other evidence pertainent [sic] to this matter. Rather than
confuse the issues on the introduction of the new evidence
through the § 2241 matter, tying up Court time, monies
and also resources better spent elsewhere until the §
2241 is resolved, abeyance is the better choice.
ECF No. 33 at 1. Plaintiff does not identify what
"parallel" § 2241 action to which he is
referring. He avers that he "seeks hearing on
the issues of his discriminatory execution of a simple
Federal sentence to prison, and the Constitutional Right to
Equal Treatment as other inmates." ECF No. 33-1 at 2.
Defendants Wagner and Rice's Motion to
Wagner and Rice argue that the complaint should be dismissed
for improper service of process, lack of personal
jurisdiction, or alternatively, for failure to state a claim.
ECF No. 35 at 1; see also ECF No. 36 at 3, 6, &
10. They each attach sworn, notarized affidavits, denying
contact with the state of West Virginia at all times during
their employment at ACCC and both aver that they are no
longer employed at ACCC. See ECF No. 35-2 and ECF No. 35-3.
untimely response in opposition to Defendants Wagner and
Rice's Motion to Dismiss, styled as "Supplement to
Plaintiffs Petition for Federal Civil Rights Complaint
(Bivens Action)," states that since he filed his
"timely" response to the (first) Roseboro
Notice, issued to advise him of his right to respond to
Defendants Saad, Potter, and Kirkland's dispositive
motion, "[n]o further action has been taken in the case
with the exception of this Supplement[.]" ECF No. 43 at 2.
goes on to raise new claims of retaliation, alleging first
that the staff at FCI Gilmer and the staff at FCI Hazelton
violated his right to the exercise of a constitutionally
protected activity by transferring him to FCI Hazelton in
retaliation for his having filed the instant civil rights
action. Id. Second, he alleges that since he filed
suit, once he arrived at FCI Hazelton, the FCI Hazelton staff
put a Management Variable ("MGTV") on him for
exercising his constitutional right to file this lawsuit. ECF
No. 43 at 3. Third, he alleges that he after he arrived at
FCI Gilmer on September 29, 2017 from ACCC, a "lower
Federal Prison," his Greater Security Management
Variable (for having been found guilty by a Disciplinary
Hearing Officer ("DHO") for a "shot" for
having committed "Incident Report of Code:
108") should have been "taken off,"
because the shot, which raised his "level 13 to
21," got expunged on July 24, 2017. Id. at 3.
support of all of this, Pham attaches two BOP Male Custody
Classification Forms, related to how his disciplinary action
"shot" affected his custody level score [ECF No.
43-2 & ECF No. 43-3]; excerpts from a copy of Defendants
Saad, Potter, and Kirkland's memorandum in support of
their dispositive motion [ECF No. 43-4 at 2 - 4, ECF No. 43-6
at 2 - 3]; a copy of a January 2, 2014 "Program Review
Report" from ACCC [ECF No. 43-4 at 5 - 7]; copies of two
October 20, 2017 inmate "Request to Staff regarding the
"Greater Security Management Variable" that was
placed on him, changing his custody level score [ECF No. 43-5
at 2 & 3]; and a copy of another BOP Male Custody
Classification form. ECF No. 43-7 at 2.
Standard of Review
Motion to Dismiss
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A
Charles Alan Wright and Arthur R. Miller, Federal Practice
and Procedure § 1356 (1990). In considering a motion to
dismiss for failure to state a claim, a plaintiffs
well-pleaded allegations are taken as true and the complaint
is viewed in the light most favorable to the plaintiff.
Mylan Labs. Inc. v. Matkari, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
Federal Rules of Civil Procedure "require only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief,' in order to 'give the
defendant fair notice of what the ... claim is and the
grounds upon which it rests.'" Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)). Courts have long
cited the "rule that a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of
[a] claim which would entitled him to relief."
Conley, 355 U.S. at 45-46. In Twombly, the
United States Supreme Court noted that a complaint need not
assert "detailed factual allegations," but must
contain more than labels and conclusions" or "a
formulaic recitation of the elements of a cause of
action." Twombly, 550 U.S. at 555 (citations
omitted). Thus, the "[f]actual allegations must be
enough to raise a right to relief above the speculative
level," Id. (citations omitted), to one that is
"plausible on its face," Id. at 570,
rather than merely "conceivable," Id.
Therefore, in order for a complaint to survive a dismissal
for failure to state a claim, the plaintiff must "allege
facts sufficient to state all the elements of [his or] her
claim." Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing
Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th
Cir. 2002); Iodice v. United States, 289 F.3d 279,
281 (4th Cir. 2002)). In so doing, the complaint must meet a
"plausibility" standard, instituted by the Supreme
Court in Ashcroft v. Iqbal, where it held that a
"claim had facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009). Thus, a well-pleaded complaint must offer more
than "a sheer possibility that a defendant has acted
unlawfully" in order to meet the plausibility standard
and survive dismissal for failure to state a claim.
motion to dismiss pursuant to Rule 12(b)(6) is accompanied by
affidavits, exhibits and other documents to be considered by
the Court, the motion will be construed as a motion for
summary judgment under Rule 56 of the Federal Rules of Civil
to Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law." In applying the standard for summary judgment, the
Court must review all the evidence "in the light most
favorable to the nonmoving party." Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The court must
avoid weighing the evidence or determining the truth and
limit its inquiry solely to a determination of whether
genuine issues of triable fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
Celotex, the Supreme Court held that the moving
party bears the initial burden of informing the Court of the
basis for the motion and of establishing the nonexistence of
genuine issues of fact. Celotex, 447 U.S. at 323.
Once "the moving party has carried its burden under Rule
56, the opponent must do more than simply show that there is
some metaphysical doubt as to material facts."
Matsushita Electric Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The nonmoving party
must present specific facts showing the existence of a
genuine issue for trial. Id. This means that the
"party opposing a properly supported motion for summary
judgment may not rest upon mere allegations or denials of
[the] pleading, but. . . must set forth specific facts
showing that there is a genuine issue for trial."
Anderson, 477 U.S. at 256.
"mere existence of a scintilla of evidence"
favoring the nonmoving party will not prevent the entry of
summary judgment. Id. at 248. To withstand such a
motion, the nonmoving party must offer evidence from which a
"fair-minded jury could return a verdict for the
[party]." Id. "If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted." Felty v. Graves-Humphreys
Co., 818 F.2d 1126, 1128 (4th Cir. 1987). Such evidence
must consist of facts which are material, meaning that they
create fair doubt rather than encourage mere speculation.
Anderson at 248. Summary judgment is proper only
"[w]here the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party."
Matsushita, 475 U.S. at 587 (citation omitted).
Adams County Correctional Center Employees
includes as defendants in this action Barbara Wagner, Warden
of the ACCC in Natchez, Mississippi, and Ms. Rice, Chief of
Unit Management at ACCC. The ACCC is owned and operated by
the Corrections Corporation of America, under contract with
the BOP. It specializes in housing illegal immigrants who
have been charged with serious crimes or who have been