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Pham v. Saad

United States District Court, N.D. West Virginia

March 19, 2018

JENNIFER SAAD, Warden, BARBARA WAGNER, Warden, MS. RICE, Chief of Unit Management, MS. POTTER, Unit Manager, and MS. K. KIRKLAND, Case Manager Defendants.



         I. Background

         The pro se[1] plaintiff, Thuan Minh Pham (“Pham”), an inmate formerly housed at FCI Hazelton, [2] filed this civil action asserting claims under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). In his complaint, plaintiff, a Vietnamese citizen who contends he has a “non-deportable status, ” alleges claims against the defendants for Fifth and Fourteenth Amendment due process violations regarding his alleged miscalculated custody classification as a deportable alien. ECF No. 1. Plaintiff 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 actions of the Federal Bureau of Prisons (“BOP”) 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. Id.

         The plaintiff contends that he exhausted his administrative remedies and, as relief, plaintiff seeks injunctive relief in the form of a directive from this Court to require the BOP to 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. Id.

         Defendants filed a motion to dismiss or, alternatively, motion for summary judgment, along with a memorandum in support, attaching, among other exhibits, a declaration of Lisa Potter. ECF Nos. 27 and 28. Defendants assert that (1) plaintiff failed to administratively challenge his eligibility for prison employment before filing this case; (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 because plaintiff fails to state viable constitutional claims, the defendants are entitled to qualified immunity; (3) the BOP has full discretion to classify inmates and federal inmates have no constitutional right to a specific custody classification; (4) the BOP has extensive discretion to determine the eligibility of inmates 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; (5) 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; (6) federal inmates have no constitutional right to employment and therefore, Pham's claim in this regard fails to state a viable Bivens claim; and (7) plaintiff has not alleged that he suffered any physical injury, thus he is precluded from recovering damages for emotional distress. Id.

         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. Plaintiff requests “the 1331 matter to be held in abeyance until such time as the 2241 matter is resolved.” ECF No. 33 at 1. Plaintiff also reiterates his arguments in an attempt to refute the defendants' motion. Plaintiff “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 filed a motion to dismiss, attaching affidavits and other documents, and a memorandum in support. ECF Nos. 35 and 36. In support, 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. 36.

         Plaintiff filed an untimely “Supplement to Plaintiffs Petition for Federal Civil Rights Complaint (Bivens Action)” with numerous attachments, in opposition to the motion to dismiss of defendants Wagner and Rice. ECF No. 43. Plaintiff asserts a new claim of retaliation, and alleges 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, and that 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. Plaintiff also alleges that after he arrived at FCI Gilmer, his Greater Security Management Variable should have been removed because “the Shot got Expunged.” ECF No. 43 at 3.

         This civil action was referred to the United States Magistrate Judge for initial review and report and recommendation pursuant to Local Rule of Prisoner Litigation Procedure 2. By order entered on September 15, 2017, this case was reassigned from Magistrate Judge James E. Seibert to Magistrate Judge Michael John Aloi.

         United States Magistrate Judge Aloi entered a report and recommendation. ECF No. 44. The magistrate judge found that “[w]ith regard to the actions of Defendants Wagner and Rice, who are both ACCC personnel, Plaintiff has failed to assert any contact by them with the State of West Virginia, much less the minimum contact necessary to satisfy the Due Process Clause.” ECF No. 44 at 12. Thus, based on the information contained in the complaint, the magistrate judge concluded that the Court cannot exercise personal jurisdiction over any personnel at Adams County Correctional Center (“ACCC”), because any action they took appears not to have occurred anywhere in West Virginia, and there is no indication that these defendants had any contact with the State of West Virginia.

         The magistrate judge found that defendants Wagner and Rice should be dismissed without prejudice as defendants in this matter, and further, that it is apparent from Pham's statement regarding the failure to effectuate service on these two defendants, that he concedes to their dismissal from this action.

         The magistrate judge also found that despite plaintiff's claim in his complaint that he exhausted his administrative remedies on all of his claims, it is apparent from a thorough review of the record that while plaintiff did exhaust his claims regarding his “Deportable Alien” PSF, his request to be transferred to a correctional facility closer to his family, and his claim that the Deportable Alien PSF precludes his participation in RDAP and/or being transferred to an RRC, he never even initiated the grievance process regarding his claim of being denied prison employment before he filed suit. ECF No. 44 at 20.

         The magistrate judge also states that beyond naming Warden Saad in the caption of the case in his complaint and identifying her as a party whose position at FCI Gilmer was the “warden, ” plaintiff never again mentions Warden Saad in his complaint. ECF No. 44 at 23. The magistrate judge concluded that the plaintiff has failed to identify any action taken by defendant Saad that violated his constitutional rights, and therefore, Saad, as the Warden of FCI Gilmer, should be dismissed from this case. ECF No. 44 at 23.

         The magistrate judge also found that the record indicates that BOP staff used their professional judgment when designating plaintiff as a deportable alien custody level inmate in October 2005 and that this classification was based on his Vietnamese citizenship. Because Pham's inmate file reveals no information to suggest that he has become a naturalized United States citizen or that Immigration and Customs Enforcement has decided not to deport him, his Deportable Alien PSF has not been removed. The magistrate judge stated that even if the Court found that the plaintiff's custody level was incorrect, such an error does not rise to the level of a due process violation. An inmate does not have a constitutional right to be placed in a specific security classification, and custodial classifications do not create a major disruption in a prisoner's environment. To the extent that the plaintiff alleges that his “Deportable Alien” PSF custody classification has prevented him from being housed at lower-security institutions or barred him from participating in certain rehabilitation programs, the same fails to state a ground for relief. ECF No. 44 at 29. To the extent that plaintiff is attempting to assert an Equal Protection claim regarding being subject to restrictions to rehabilitative programs that other inmates are not subject to, such a claim fails, because he does not show that he is being treated differently from similarly situated persons, i.e., non-citizen prisoners, or that the restrictions on community-based treatment or early release are irrational. ECF No. 44 at 30. Finally, the magistrate judge found that Pham's claim that he is entitled to be transferred to a facility closer to his family, instead of “over (500) miles” away, fails to state a constitutional claim as well. ECF No. 44 at 30. Therefore, the magistrate judge found that none of plaintiff's claims regarding his Deportable Alien PSF and its concomitant effects on his incarceration and rehabilitative options state a cognizable Bivens claim against these defendants. Because it appears that no genuine issue of material fact exists with regard to these claims, the magistrate judge found that summary judgment on the same should be granted for defendants Potter and Kirkland. ECF No. 44 at 32.

         Lastly, the magistrate judge found that plaintiff's retaliation claims are untimely as they were raised for the first time over eleven months after he filed the instant Bivens action. All of these alleged acts occurred almost nine months after plaintiff filed the instant complaint, and are unrelated to any of the claims in this Bivens action; moreover, they include claims not only against FCI Gilmer staff, but also against FCI Hazelton staff, who are not even named defendants in this action. Accordingly, the magistrate judge did not consider these claims in the report and recommendation and advised that if plaintiff wishes to attempt to pursue these new claims, he must file another Bivens complaint and pay the filing fee. ECF No. 44 at 32-33.

         The magistrate judge recommended that the motion to dismiss of defendants Wagner and Rice (ECF No. 35), herein construed as a motion for summary judgment, be granted and plaintiff's complaint (ECF No. 1) be dismissed without prejudice as to them; the motion to dismiss, or alternatively, motion for summary judgment of defendants Saad, Potter, and Kirkland (ECF No. 27) be granted and that the plaintiff's complaint (ECF No. 1) be denied and dismissed with prejudice as to them. Further, the magistrate judge recommends that plaintiff's pending motion to hold his 28 U.S.C. § 1331 Bivens suit in abeyance pending the 28 U.S.C. § 2241 outcome (ECF No. 33) be denied as moot.

         The magistrate judge informed the plaintiff that “[w]ithin fourteen (14) days after being served with a copy of the Report and Recommendation, any party may file with the Clerk of the Court written objections identifying the portions of the recommendation to which objections are made, and the basis for such objections. A copy of such objections should also be submitted to the United States District Judge. Failure to timely file objections to this recommendation will result in waiver of the right to appeal from a judgment of this Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, ...

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