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Pham v. Saad

United States District Court, N.D. West Virginia

January 24, 2018

THUAN MINH PHAM, Plaintiff,
v.
JENNIFER SAAD, Warden; BARBARA WAGNER, Warden; MS. RICE, Chief of Unit Management; MS. POTTER, Unit Manager; and MS. K. KIRKLAND, Case Manager, Defendants.

          (Judge Stamp)

          REPORT AND RECOMMENDATION

          MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE.

         On November 28, 2016, the pro se Plaintiff, an inmate then-incarcerated at FCI Gilmer, [1]in Glenville, 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 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.

         On 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 & 25.

         On May 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.

         On June 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. 37.[3]

         By Order entered September 15, 2017, this case was reassigned from Magistrate Judge James E. Seibert to the undersigned.

         On November 6, 2017, Pham filed a "Supplement to Plaintiffs Petition for Federal Civil Rights Complaint (Bivens Action)" with numerous attachments. ECF No. 43.

         This case is before the undersigned for review, Report and Recommendation pursuant to LR PL P 2.

         I. The Pleadings

         A. The Complaint

         In the 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.

         The 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.

         As 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.

         B. Defendants Saad, Potter, and Kirkland's Motion to Dismiss or in the Alternative, Motion for Summary Judgment

         In 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.

         C. Plaintiffs Response in Opposition

         In his 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.

         Further, 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.[4] 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.

         E. Defendants Wagner and Rice's Motion to Dismiss[5]

         Defendants 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.

         E. Plaintiffs Response

         Plaintiffs untimely response in opposition[6] 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[.]"[7] ECF No. 43 at 2.

         He then 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")[8] 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")[9] should have been "taken off," because the shot, which raised his "level 13 to 21," got expunged on July 24, 2017. Id. at 3.

         In 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.

         III. Standard of Review

         A. Motion to Dismiss

         "A 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 (1957)).

         The 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. Id.

         When a 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 Procedure.

         B. Summary Judgment

         Pursuant 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).

         In 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.

         The "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).

         IV. Analysis

         A. Adams County Correctional Center Employees

         Plaintiff 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 deported, ...


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