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Mayhew v. Young

United States District Court, S.D. West Virginia, Beckley Division

February 14, 2018

DAVID C. MAYHEW, Plaintiff,
v.
D.L. YOUNG, et al., Defendants.

          AMENDED PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn United States Magistrate Judge

         Pending before the Court are the following: (1) Plaintiff's “Motion Requesting a Temporary Restraining Order and a Preliminary Injunction Seeking Emergency Relief” (Document No. 3), filed on May 2, 2017; and (2) Defendants' Motion for Summary Judgment (Document No. 31), filed on September 28, 2017. The Court notified Plaintiff pursuant to Roseboro v. Garrison, 528 F.2d 304 (4th Cir. 1975), that Plaintiff had the right to file a response to Defendants' Motion and submit Affidavit(s) or statements and/or other legal or factual material supporting his claims as they are challenged by the Defendants in moving to dismiss. (Document No. 33.) Plaintiff, however, failed to file a Response. By Proposed Findings and Recommendation entered on December 11, 2017, the undersigned recommended that Defendants' Motion for Summary Judgment be granted and Plaintiff's “Motion Requesting a Temporary Restraining Order and a Preliminary Injunction Seeking Emergency Relief” be denied. (Document No. 35.) On December 19, 2017, and December 26, 2017, Plaintiff filed Motions for Reconsideration. (Document Nos. 36 and 37.) In his Motions, Plaintiff stated that he never received a copy of Defendants' Motion for Summary Judgment, requested that this Court allow him to file a Response, and then reconsider Defendants' Motion for Summary Judgment. (Id.) By Order entered on January 2, 2018, the undersigned granted Plaintiff's Motions and directed Plaintiff to file his Response to Defendants' Motion for Summary Judgment. (Document No. 38.) On February 5, 2018, Plaintiff filed his Response to Defendants' Motion for Summary Judgment. (Document No. 41.) Having reconsidered, the undersigned has concluded that Plaintiff's “Motion Requesting a Temporary Restraining Order and a Preliminary Injunction Seeking Emergency Relief” (Document No. 3) should be denied and Defendants' above Motion for Summary Judgment (Document No. 31) should be granted.

         FACTUAL AND PROCEDURAL HISTORY

         On May 2, 2017, Plaintiff filed his Complaint in this matter for alleged violations of his constitutional and civil rights pursuant to Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 24 L.Ed.2d 619 (1971).[1] (Document No. 2.) Plaintiff names the following as Defendants: (1) D. L. Young, Warden of FCI Beckley; and (2) W. Pistory, Counselor at FCI Beckley. (Id.) Plaintiff alleges that on March 21, 2017, Defendant Pistory physically assaulted Plaintiff in violation of his Eighth Amendment rights. (Id.) Plaintiff appears to allege that Defendant Pistory used physical force to throw Plaintiff to the ground without just cause. (Id.) Plaintiff complains that Defendant Pistory then “violated Plaintiff's Fifth Amendment rights when he purposefully, willfully and deliberately authored a false incident report in his premeditated and calculated efforts to rationalize, excuse and legitimatize his unlawful actions.” (Id.) Plaintiff alleges that the foregoing resulted sanctions and in his placement in the Special Housing Unit [“SHU”]. (Id.) Plaintiff states that he was denied access to his high blood pressure medication during his placement in the SHU, which caused him to suffer “excruciating headaches.” (Id.) Plaintiff further states that he was denied contact with his attorney concerning his direct appeal, which violated Plaintiff's Sixth Amendment rights. (Id.) Finally, Plaintiff alleges that he was denied due process in violation of the Fifth Amendment concerning disciplinary actions taken against him. (Id.) Plaintiff alleges Defendant Young was aware of the foregoing constitutional violations and failed to protect Plaintiff from such violations. (Id.) Plaintiff requests monetary damages and declaratory and injunctive relief. (Id., pp. 7 - 9.)

         As Exhibits, Plaintiff attaches the following: (1) A copy of his “Request for Administrative Remedy” dated March 29, 2017 (Document No. 2-1, pp. 2 - 3.); (2) A copy of Plaintiff's TRULINCS e-mail communication to Warden Young dated March 30, 2017, regarding his “Request to Staff” requesting that evidence be obtain and reviewed regarding his Incident Report (Id., p. 5.); (3) A copy of Plaintiff's TRULINCS e-mail communication to Warden Young dated March 30, 2017, regarding a statement made by Officer Tunstalle (Id., p. 6.); (4) A copy of Plaintiff's TRULINCS e-mail communication to Warden Young dated March 30, 2017, regarding a statement made by Officer James (Id., p. 7.); (5) A copy of Plaintiff's TRULINCS e-mail communication to Warden Young dated March 29, 2017, complaining that the UDC did not conduct an adequate investigation (Id., pp. 14 and 17.); (6) A copy of a Statement from Inmate Deangelo Derrick (Id., p. 8.); (7) A copy of a Statement from Inmate Merle Adams (Id., p. 9.); (8) A copy of a Statement from Inmate Terron Michaux (Id., p. 10.); (9) A copy of a Plaintiff's Statement dated March 27, 2017 (Id., pp. 11 - 12.); (10) A copy of a Plaintiff's Statement dated March 26, 2017 (Id., p. 13.); (11) A copy of Plaintiff's Incident Report dated March 21, 2017 (Id., p. 15.); (12) A copy of Plaintiff's Incident Report dated March 22, 2017 (Id., p. 18.); (13)) A copy of Plaintiff's TRULINCS e-mail communication to the Warden dated April 2, 2017, regarding his “Request to Staff” that BOP policies be followed during disciplinary hearings (Id., p. 19.); and (15) A copy of a Statement by Officers at FCI Beckely (Id., p. 20.)

         On the same day, Plaintiff filed a “Motion Requesting a Temporary Restraining Order and a Preliminary Injunction Seeking Emergency Relief.” (Document No. 3.) In his Motion, Plaintiff appears to be requesting an order from the Court requiring Defendants to expunge the incident report, disciplinary conviction, and the imposed sanctions (loss of telephone and e-mail privileges for 60 days). (Id. and Document No. 2, p. 8.)

         On June 1, 2017, Plaintiff filed his “Motion Seeking to Amend Originally Filed Civil Rights Complaint Under Section 1983 to be Construed, Interpreted and Decided Against Federal Officers and Employees Under Bivens v. Six Unknown Named Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).” (Document No. 13.) By Order entered on June 5, 2017, the undersigned granted Plaintiff's above Motion. (Document No. 17.)

         By Order entered on July 17, 2017, the undersigned granted Plaintiff's Application to Proceed Without Prepayment of Fees and directed the Clerk to issue process upon receipt of Plaintiff's initial partial payment of the filing fee. (Document No. 18.) Plaintiff paid his initial partial payment of the filing fee on July 31, 2017, and the Clerk issued process on the same day. (Document Nos. 31 and 32.) On September 28, 2017, the Defendants filed their Motion for Summary Judgment and Memorandum in Support. (Document Nos. 31 and 32.) Defendants argue that Plaintiff's claims should be dismissed because “Plaintiff failed to exhaust administrative remedies” (Document No. 32, pp. 4 - 9.) As Exhibits, Defendants attach the following: (1) Declaration of Sharon Wahl (Document No. 31, pp. 3 - 4.); (2) A copy of Plaintiff's Administrative Remedy History through May 2, 2017 (Id., pp. 6 - 7.); (3) A copy of Plaintiff's Inmate Quarters History (Id., p. 9.); (4) Declaration of William Pistory (Id., pp. 10 - 11.); (5) A copy of the Incident Report dated March 22, 2017, charging Plaintiff with Refusing to Obey an Order (Id., pp. 13 - 14.).

         Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Plaintiff on September 28, 2017, advising him of the right to file a response to Defendants' Motion for Summary Judgment. (Document No. 33.) Plaintiff, however, has failed to file a Response to Defendants' Motion for Summary Judgment. By Proposed Findings and Recommendation entered on December 11, 2017, the undersigned recommended that Defendants' Motion for Summary Judgment be granted and Plaintiff's “Motion Requesting a Temporary Restraining Order and a Preliminary Injunction Seeking Emergency Relief” be denied. (Document No. 35.)

         On December 19, 2017, and December 26, 2017, Plaintiff filed Motions for Reconsideration. (Document Nos. 36 and 37.) In his Motions, Plaintiff requests that this Court reconsider the Proposed Findings and Recommendation (Document No. 35) entered on December 11, 2017, recommending that Defendants' Motion for Summary Judgment be granted. (Id.) In support, Plaintiff states that he never received a copy of Defendants' Motion for Summary Judgment. (Id.) Therefore, Plaintiff requests that this Court allow him to file a Response and reconsider Defendants' Motion for Summary Judgment. (Id.

         By Order entered on January 2, 2018, the undersigned granted Plaintiff's Motions and directed Plaintiff to file his Response to Defendants' Motion for Summary Judgment. (Document No. 38.) On February 5, 2018, Plaintiff filed his Response arguing that he had properly stated a claim against Defendants. (Document No. 41.) First, Plaintiff states that Defendant Pistory's Declaration is “completely and utterly false.” (Id., p. 2.) Plaintiff contends that he was in a stationary and squatting position, when Defendant Young hit Plaintiff in the upper body. (Id., pp. 2, 5 - 8, 11.) Thus, Plaintiff states that he has properly alleged an excessive force claim under the Eighth Amendment. (Id., pp. 3 - 4.) Second, Plaintiff states that he exhausted all available administrative remedies. (Id., pp. 4 - 5.) Third, Plaintiff complains that Defendants' conduct caused Plaintiff to be placed in SHU or the “hole.” (Id., p. 5.) Plaintiff complains that his placement in SHU resulted in the loss of phone and e-mail privileges and his cell in SHU was “filthy.” (Id.) Fourth, Plaintiff disputes that he did not request medical attention. (Id., p. 6.) Plaintiff states that he requested and was denied his high blood pressure medication for two days, which resulted in an excruciating headache. (Id.) Finally, Plaintiff argues that Defendants are not entitled to immunity. (Id., pp. 8 - 9.) As relief, Plaintiff requests that the Court direct the BOP to remove the false incident report from his record as it is impeding his ability to be transferred to a facility closer to his family. (Id., p. 10.)

         As Exhibits, Plaintiff attaches the following: (1) A copy of an Affidavit from Inmate Merle Adams stating that Plaintiff was “on the ground” and “was not put on the ground by a staff member” (Id., p. 14.); (2) A copy of an Affidavit from Inmate Boyd Clark stating that Counselor Pistory hit and “tackled” Plaintiff to the ground while Plaintiff was properly kneeling in front of the chapel (Id., pp. 15 - 16.); (3) A copy of an Affidavit Mr. Tunstalle, an ACE coordinator at FCI Beckley, stating that when he responded to the institutional alarm he observed Plaintiff, who had mud stains on his knees, standing by the wall with Counselor Pistory (Id., p. 17.); (4) A copy of Plaintiff's Affidavit stating that Counselor Pistory grabbed him in a violent manner and tackled him to the ground without just cause (Id., pp. 18 - 21.); (5) A copy of Plaintiff's “Regional Administrative Remedy Appeal” dated April 27, 2017 and stamped received on May 23, 2017 by Bureau of Prisons MARO Regional Counsel (Remedy ID No. 897557-R1) (Id., p. 23 - 28.); (6) A copy of a “Rejection Notice” dated May 23, 2017, from the Administrative Remedy Coordinator at the Mid-Atlantic Regional Office (Remedy ID No. 897557-R1) (Id., p. 28.); (7) A copy of Plaintiff's “Central Office Administrative Remedy Appeal” dated June 14, 2017 and stamped received by the BOP Administrative Remedy Sector on June 26, 2017 (Remedy ID No. 897557-A1) (Id., p. 29.); (8) A copy of a “Rejection Notice” dated July 10, 2017 from the Central Office Administrative Remedy Coordinator (Remedy ID No. 897557-A1) (Id., p. 30.); (9) A copy of Plaintiff's “Regional Administrative Remedy Appeal” dated July 12, 2017 and stamped received on August 9, 2017, by Bureau of Prisons MARO Regional Counsel (Remedy ID No. 897557-R2) (Id., pp. 31 - 32.); and (10) A copy of a “Rejection Notice” dated August 9, 2017, from the Administrative Remedy Coordinator at the Mid-Atlantic Regional Office (Remedy ID No. 897557-R2) (Id., p. 33.).

         THE STANDARD

         Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Once the moving party demonstrates the lack of evidence to support the non-moving party's claims, the non-moving party must go beyond the pleadings and make a sufficient showing of facts presenting a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 -87, 106 S.Ct.1348, 89 L.Ed.2d 538 (1986). All inferences must be drawn from the underlying facts in the light most favorable to the non-moving party. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Summary judgment is required when a party fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual issues proving other elements of the claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. Generally speaking, therefore, summary judgment will be granted unless a reasonable jury could return a verdict for the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no facts or inferences which can be drawn from the circumstances will support Plaintiff's claims, summary judgment is appropriate.

         DISCUSSION

         1. Failure to Exhaust:

         “[F]ederal courts must take cognizance of the valid constitutional claims of prison inmates.” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). A Bivens action is a judicially created damages remedy which is designed to vindicate violations of constitutional rights by federal actors. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. at 395-97, 91 S.Ct. at 2004-05; See also Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980)(extending Bivens to Eighth Amendment claims); Davis v. Passman, 442 U.S. 228, 239 n. 18, 99 S.Ct. 2264, 2274 n. 18, 60 L.Ed.2d 846 (1979)(extending Bivens to allow citizen's recovery of damages resulting from a federal agent's violation of the Due Process Clause of the Fifth Amendment.) A Bivens action is the federal counterpart of an action under 42 U.S.C. § 1983. An action for money damages may be brought against federal agents acting under the color of their authority for injuries caused by their unconstitutional conduct. Proof of causation between the official's conduct and the alleged injury is necessary for there to be liability. A plaintiff asserting a claim under Bivens must show the violation of a valid constitutional right by a person acting under color of federal law.[2] The United States Supreme Court has held that an inmate may name a federal officer in an individual capacity as a defendant in alleging an Eighth Amendment constitutional violation pursuant to Bivens. See Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). However, Bivens claims are not actionable against the United States, federal agencies, or public officials acting in their official capacities. See FDIC v. Meyer, 510 U.S. 471, 475, 484-86, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991); Reinbold v. Evers, 187 F.3d 348, 355 n. 7 (4th Cir. 1999).

         The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a)(1996), requires that inmates exhaust available administrative remedies prior to filing civil actions though the administrative process may not afford them the relief they might obtain through civil proceedings.[3]Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2382-83, 165 L.Ed.2d 368 (2006); Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)(The Prison Litigation Reform Act's exhaustion requirement applies to all inmate suits about prison life whether they involve general circumstances or particular episodes and whether they allege excessive force or some other wrong.); Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 1820, 149 L.Ed.2d 958 (2001)(“Under 42 U.S.C. § 1997e(a), an inmate seeking only money damages must complete any prison administrative process capable of addressing the inmate's complaint and providing some form of relief, even if the process does not make specific provision for monetary relief.”). Exhaustion of administrative remedies is also required when injunctive relief is requested. Goist v. U.S. Bureau of Prisons, 2002 WL 32079467, *4, fn.1 (D.S.C. Sep 25, 2002), aff'd, 54 Fed.Appx. 159 (4th Cir. 2003), cert. denied, 538 U.S. 1047, 123 S.Ct. 2111, 155 L.Ed.2d 1088 (2003). “[A] court may not excuse a failure to exhaust” because the PLRA's mandatory exhaustion scheme “foreclose[es] judicial discretion.” Ross v. Blake, __U.S.__, 136 S.Ct. 1850, 1856-57, 195 L.Ed.2d 117 (2016)(“[A] court may not excuse a failure to exhaust, even to take [special circumstances] into account.”). But the plain language of the statute requires that only “available” administrative remedies be exhausted. Id. at 1855(“A prisoner need not exhaust remedies if they are not ‘available.'”) In Ross v. Blake, the Supreme Court set forth three scenarios where the administrative process is considered “unavailable”: (1) The administrative process “operates as a simple dead end -- with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) The administrative process is so opaque that no ordinary prisoner can discern or navigate through the process; and (3) The “administrator thwart inmates from taking advantage of a grievance process through machination, ...


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