United States District Court, N.D. West Virginia, Elkins
TIMOTHY L. HOLLOWAY, Plaintiff,
JOE COAKLEY, Warden, USP Hazleton, et al. Defendants.
REPORT AND RECOMMENDATION
John Aloi, Judge
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
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.
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.
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.
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
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.
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.
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
(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.
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.
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).
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 PARTIES' CONTENTIONS
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).
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.
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).
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.
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.”). 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.
A Temporary Restraining Order Is No Longer Appropriate Now