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Holloway v. Coakley

United States District Court, N.D. West Virginia, Elkins

February 7, 2018

JOE COAKLEY, Warden, USP Hazleton, et al. Defendants.

          BAILEY JUDGE


          Michel John Aloi, Judge

         This matter is before the undersigned pursuant to Plaintiffs “Motion for Temporary Restraining Order, Preliminary Injunction, and Sanctions” filed November 8, 2017. (ECF No. 85). Plaintiff moved the Court for 1) a temporary restraining order enjoining Plaintiffs transfer to a SMU, 2) a hearing on his Motion for Preliminary Injunction as soon as is practicable, and 3) sanctions on Defendants for violation of the notice requirement. Id A hearing on the motion was held before the undersigned on November 20, 2017, at which time a ruling was held in abeyance to permit the parties to file supplemental briefings. Subsequently, the Government filed its response on November 29, 2017 (ECF No. 104), and Plaintiff filed his reply on December 6, 2017. (ECF No. 105). The matter now being fully heard and fully briefed, the undersigned issues this Report and Recommendation to the District Judge.


         This matter dates back to June 29, 2015, when an assault took place at United States Penitentiary Hazleton (“USP Hazleton”). The security footage showed inmate Springer entering Cell 208 at 12:27 p.m. with no apparent injuries. (ECF No. 54-1 at 4). At 1:45 p.m., Plaintiff and inmates Sparks and Lighthill were seen entering Cell 208. Id. At 1:53 p.m., inmate Cox was seen entering cell 208. Id. At 2:06 p.m., Plaintiff, Sparks, Lighthill, and Cox are seen exiting cell 208. (ECF No. 54-1 at 2). At 2:07 p.m., inmate Springer was seen exiting cell 208 appearing to be injured. Id. Springer was subsequently determined to have sustained injuries to his head and back. Id. Although the report specified that no injuries were sustained by Plaintiff, inmate Lighthill, or inmate Sparks, the report was silent as to whether inmate Cox had any injuries in this incident. Id. at 3.

         Following the assault, Plaintiff and the other inmates were all detained in the Special Housing Unit (“SHU”) of USP Hazleton for about five months. No disciplinary hearing was held at that time. An Inmate Investigate Report issued in October 2015 concluded that the inmates, including Plaintiff, could all be “return[ed] to general population pending prosecution without further disruption to institutional operations.” (ECF No. 104-1 at 59). In November 2015, all five inmates - including Plaintiff - were released from the SHU and returned to general population pending continued investigation and potential charges. Plaintiff remained in general population from November 2015 until June 8, 2016.

         On February 18, 2016, the undersigned received an Appointment of Counsel request letter from Assistant United States Attorney (“AUSA”) Andrew Cogar. Cogar advised that the Federal Bureau of Prisons Special Investigative Services (“SIS”) had referred the incident to the Government for prosecution. Cogar indicated that it may be appropriate to indict five inmates -Cox, Plaintiff, Lighthill, Sparks, and Wooliver - on aiding and abetting assault with serious bodily injury in violation of 18 U.S.C. § 113(a)(6). However, it was requested that the five inmates be appointed counsel so that resolution by plea agreement could be explored first. On February 22, 2016, CJA panel attorney Deanna Pennington, Esq. was appointed to represent Plaintiff. A global plea agreement was offered to all of the defendants, which Plaintiff declined to accept. It appears that all other inmates excepting Plaintiff were willing to accept the global plea offer.

         On June 8, 2016, a routine search of the cell Plaintiff shared with inmate Dawson was conducted, and yellow zip ties - a contraband item - were found in a locker. (ECF No. 20 at 5). Plaintiff and Dawson were both admitted to Administrative Detention in the SHU pending a hearing for violation of Bureau regulations. (ECF No. 20 at 6). Following a hearing, a Disciplinary Hearing Officer (DHO) found Dawson guilty of the incident because he admitted to possessing the zip ties and they were found in Dawson's locker. (ECF No. 27 at 2). Plaintiff was found not guilty, and these charges against him dismissed. Id The following week, Dawson was released from the SHU back into general population, but Plaintiff remained in the SHU. (ECF No. 27 at 2-3). Plaintiff was told that he would continue to be held in the SHU because of the “pending charges for [June 29, 2015] assault.” Id On February 23, 2017, the undersigned received a letter Plaintiff had written to AUSA Cogar indicating that “Ms. Pennington [was] no longer [his] attorney, ” and instructing the United States Attorney's Office to either deal directly with Plaintiff or appoint Plaintiff new counsel. (ECF No. 14). Subsequently, on March 6, 2017, the undersigned received a letter Plaintiff had written to the Court elaborating on his reasons for refusing to work with Attorney Pennington any longer. (ECF No. 15). In his letter, which was construed as a motion to appoint new counsel, Plaintiff elaborated on his reasons for same. Plaintiff explained that when he first met with Pennington, she presented a plea deal from the Government and told Plaintiff that AUSA Cogar had “offered to grease the wheels for [Plaintiff] to be [released from the SHU and] placed back in [general] population if [he] would accept the [plea] deal.” Id Feeling that it was an unfair tactic to be held in the SHU indefinitely until he accepted the Government's plea deal, Plaintiff asked Pennington to “address[] this court . . . regarding [why Plaintiff was being held indefinitely in the SHU], ” but she had failed to do anything about it. Id In the interim, Plaintiff attempted to get answers from USP Hazleton. Plaintiff was told by SIS Howell that he was not being held in the SHU per USP Hazleton, but rather per “someone at the Federal Building” who he had made “very mad” by refusing to accept the global plea agreement as offered to all defendants. Id. Plaintiff asserted that the AUSA “knows he can drag this out for many months but once I'm indicted the clock starts. There is no justice in what he's doing, [and] my attorney goes right along with him.” Id Following the hearing, Plaintiff was appointed new counsel for the criminal matter. (ECF No. 7). However, Plaintiff subsequently filed a motion to reconsider, asking to represent himself. (ECF No. 16). A hearing on the motion was held on April 20, 2017, attended by Plaintiff, Plaintiffs then-counsel in the criminal case, Darrell Ringer, Esq. and the Government by Assistant United States Attorney Traci Cook. Although Plaintiffs general ability to represent himself did not appear to be at issue, the undersigned had concerns about Plaintiffs ability to properly represent himself while housed in the SHU, where he could not receive phone calls and had been denied access to legal materials. As a result, the undersigned attempted to ascertain why precisely Plaintiff was being held in the SHU, and when his release from the SHU was anticipated.

         Plaintiff reiterated at the hearing that he was being held indefinitely in the SHU as a result his refusal to accept the Government's plea offer regarding the June 2015 assault. Plaintiff stated that because no charging document had been filed in his criminal case, the investigation could remain “pending” indefinitely, and he could thus be detained in the SHU indefinitely.

         AUSA Cook informed the undersigned that the Government had already made an inquiry to USP Hazleton on the matter, and were told that Defendant was placed in the SHU for reasons independent of the assault investigation. However, because that was insufficient for the undersigned to determine for what reason Plaintiff was being held in the SHU, and for how long, Attorney Ringer and AUSA Cook were both ordered to obtain documentation of same and provide it to the Court within seven days.

         In response, the Government submitted a memorandum written by SIS Lieutenant Eric Howell, which consisted of two sentences:

Inmate Holloway . . . is currently assigned to the [SHU] in [USP] Hazleton, WV. Holloway's current placement in SHU is not related to his pending case with the U.S. Attorney's Office, which occurred on June 29, 2015 at USP Hazleton.

(ECF No. 17). Howell's memorandum thus contained no information useful to the inquiry beyond what had already been represented to this Court. After informing the AUSA that SIS Howell's memorandum was unresponsive to the undersigned's Order, the undersigned subsequently received a faxed copy of an Administrative Detention Order (form BP-S308.052) dated June 15, 2016 which stated that Plaintiff was admitted to Administrative Detention “pending SIS Investigation for Escape Risk.” (ECF No. 18). This, too, was unresponsive as 1) that order was a year old, and 2) that investigation had concluded many months ago with Plaintiff being found not guilty of the charges.

         Plaintiffs then-standby counsel Ringer submitted a letter from Warden Coakley on May 5, 2017, stating that:

Our review of this matter reveals Mr. Holloway was placed in the Special Housing Unit (SHU) as an escape risk after [zip ties] were found in this cell that could be used to facilitate an escape. He is also pending prosecution for a serious assault in 2015. Once his legal case is completed, he will be transferred to another facility.

(ECF No. 1 at 15). On May 26, 2017, Ringer wrote to Plaintiff advising that the Government had decided not to pursue criminal charges as a result of the June 2015 incident. (ECF No. 93 at 9). On June 19, 2017, Plaintiff was told by Defendant Jones that the disciplinary write up regarding the assault “had been expunged from Plaintiffs record.” Id A few days later, Plaintiff was told by Officer Whetstone that the Disciplinary Hearing Officer was dismissing the institution-level charges. Id However, the matter was not resolved.

         On June 23, 2017, Whetstone informed Plaintiff that Defendant Jones was referring Plaintiff for transfer to the SMU (“Special Management Unit”) at USP Lewisburg in Pennsylvania. (ECF No. 93 at 9). On June 27, 2017, Plaintiff was given a copy of the incident report on the June 2015 assault. Id On July 12, 2017, a Disciplinary Hearing Officer (“DHO”) held a hearing on the assault charges. (ECF No. 54-1). Plaintiff denied the charges and stated “not guilty.” Id Evidence consisted of memorandums from various correctional officers, clinical records of the inmates, and digital photographs. Id No witnesses were called and no confidential information was used that was not revealed to Plaintiff. Id at 4. The DHO noted that Plaintiff was seen entering and exiting inmate Springer's cell along with the other inmates, and found Plaintiff guilty. Id The DHO sentenced Plaintiff to seven (7) days of disciplinary segregation and one year's loss of commissary privileges. Id at 2. Plaintiff was provided with appeal forms by the DHO, and his appeal of this order was, at last report, pending at the highest level of review at the BOP Central Office. (ECF No. 93 at 10).

         However, instead of being released after the seven (7) day disciplinary segregation sentence concluded, Plaintiff continued to be held in the SHU, where he remains to this day. (ECF No. 93 at 10). In addition to his continued detention in the SHU, Plaintiff has now been approved for transfer to the SMU. (ECF No. 96). Defendant's continued detention in the SHU at USP Hazleton and his impending SMU transfer form the basis of Plaintiffs civil case now before the Court.


         Plaintiff moved the court, in relevant part, for a 1) temporary restraining order enjoining his transfer to the SMU until a hearing could be held, (ECF No. 85), 2) a preliminary injunction enjoining his transfer to a SMU during the pendency of this case, (ECF No. 57), and 3) sanctions against Defendants for violation of the joint notice requirement. (ECF No. 85).

         In their response, Defendants argue that Plaintiff has no constitutionally protected right to remain at USP Hazleton, and that courts have typically declined to interfere with the BOP's extensive discretion to transfer inmates. (ECF No. 86). In a supplemental response, Defendants further argued that a Bivens action does not authorize injunctive relief; only monetary damages; therefore, even if Plaintiff was transferred, he would not be prevented from seeking monetary damages. (ECF No. 104 at 10). Accordingly, Defendants argue that Plaintiff has not shown he will suffer actual, imminent and irreparable harm if injunctive relief is not granted, Id, and he is not likely to prevail on the merits. Id at 15.

         In his reply, Plaintiff argued that his Amended Complaint specifically states that 1) his claims were brought under both Bivens and federal question jurisdiction; 2) he was suing Defendants in official capacities only relative to injunctive and declaratory relief, but in individual capacities for monetary damages; 3) he seeks declaratory and injunctive relief, but separately also monetary damages, for a) retaliation after exercising his Sixth Amendment right to trial and b) violation of his Fifth Amendment due process rights. (ECF No. 105 at 5-6).

         As to Defendant's claim that injunctive relief is unavailable, Plaintiff points out that 5 U.S.C. § 702 expressly provides for such relief; moreover, it has been applied to suits for injunctive relief against BOP employees. (ECF No. 105 at 6). Thus, Plaintiff argues, his claim is in fact cognizable and properly before this Court. In addition, Plaintiff argues that the balance of harms weighs clearly in his favor. Id at 8-9. Lastly, Plaintiff points out that documents attached by Defendants to their response brief confirm that Plaintiffs disciplinary history at USP Hazleton has in fact been scant, contradicting Defendants' claims that there are non-retaliatory bases for Plaintiffs SMU referral. Id at 10. Accordingly, Plaintiff argues there is a likelihood of his success on the merits.

         III. ANALYSIS

         First, as to the legal issues raised by Defendants, Plaintiffs requests for injunctive relief are cognizable and authorized against Defendants by 5 U.S.C. § 702, which operates as “a general waiver of the government's sovereign immunity from injunctive relief.” Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, *1233 (10th Cir. 2005) (internal citation omitted). Second, while Plaintiff has no constitutionally-protected right to remain or be housed at any specific facility, as Defendants argue, that is not in dispute. (ECF No. 105 at 7). Rather, Plaintiff has a constitutionally-protected right to avoid retaliatory assignment to a Special Management Unit (“SMU”) for exercise of his constitutional rights. Wilkinson v. Austin, 545 U.S. 209, *223, 125 S.Ct. 2384, *2394, 162 L.Ed.2d 174 (2005) (Inmates have a due process protected liberty interest in avoiding assignment to correctional conditions that “impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”).[1] Thus, although courts typically are reluctant to interfere in the BOP's management of their prisoners, the courts can - and on occasion do - intervene when constitutional violations are occurring.

         1. A Temporary Restraining Order Is No Longer Appropriate Now ...

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