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Johnson v. S. Kallis

United States District Court, N.D. West Virginia

December 19, 2019

DONTEZ JOHNSON, Plaintiff,
v.
S. KALLIS, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

          JOHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE

         On this day, the above-styled matter came before this Court for consideration of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment [Doc. 80], filed November 15, 2019. Having been fully briefed, this matter is now ripe for decision. For the reasons set forth below, the Motion will be granted.

         BACKGROUND

         Plaintiff was sentenced on July 15, 2005, in the United States District Court for the Northern District of Ohio to a 110-month term of imprisonment for Conspiracy with Intent to Distribute and Distribution of Crack Cocaine. Plaintiff was released from Bureau of Prisons (“BOP”) custody on December 11, 2013, and placed upon supervised release. On May 23, 2017, plaintiff's supervised release was revoked, and he was recommitted to BOP custody on June 26, 2017, to serve a 24-month sentence. Plaintiff was designated to FCI Hazelton, and remained there until February 5, 2018. Plaintiff was released from BOP custody on March 23, 2018.

         On January 4, 2018, plaintiff filed a Bivens Complaint on the Court-approved form [Doc. 7]. Plaintiff's Complaint alleges defendants, who are current and former staff members at FCI Hazelton, violated his constitutional rights on various occasions while he was designated to FCI Hazelton. As noted in Magistrate Judge James P. Mazzone's Order to Answer, the Complaint contains 36 allegations and is “written in pencil and is difficult to read” [Doc. 36 at 2]. “Broadly grouped, the Complaint makes allegations of: (1) conditions of confinement; (2) denial of access to the courts; (3) retaliatory acts; (4) racial discrimination; (5) sexual harassment; and (6) religious discrimination” [Id.]. Although the Complaint is difficult to read and interpret, defendants summarize that the following allegations are being asserted for each broad group:

(1) Conditions of Confinement - Eighth Amendment
Claim 4: Plaintiff alleges, upon transfer to FCI Hazelton, that he was served food to which the BOP knows he is allergic. ECF 7, PageID# 49.
Claim 6: Plaintiff alleges that he has been denied the ability to buy soap, deodorant, toothpaste, writing paper, envelopes, pens, and food items. ECF 7-1, PageID# 52.
Claim 10: Plaintiff alleges he was forced to sleep on a “steel slab from 8-21-17 to 8-26-17.” ECF 7-1, PageID# 54.
Claim 13: Plaintiff alleges that he was “locked up for seven days” and only received a hot cheeseburger for lunch. ECF 7-1, PageID# 55.
Claim 19: Plaintiff again alleges he was served food to which he is allergic. ECF 7-1, PageID# 57.
Claim 23: Plaintiff alleges it is improper for him to be denied access to pictures while in the SHU. ECF 7-1, PageID# 58.
Claim 27: Plaintiff alleges he was improperly sanctioned to loss of his mattress.
ECF 7-1, PageID# 59-60.
Claim 28: Plaintiff alleges he was improperly forced to bathe with shampoo for “16 or 17 weeks” while in “solitary confinement.” ECF 7-1, PageID# 60.
Claim 33: Plaintiff alleges he was improperly forced to sleep on a freezing steel slab for 15 hours each day. ECF 7-1, PageID# 63.
Claim 34: Plaintiff alleges he was improperly sanctioned to loss of food items, hygiene items, pens, writing papers, and envelopes because he was on “A/D status.” ECF 7-1, PageID# 63.
Claim 35: Plaintiff alleges he was improperly limited to one fifteen minute phone call per month and forced to bathe with just shampoo for 17 or 18 months. ECF 7-1, PageID# 63-64.
Claim 36(5): Plaintiff alleges he was improperly forced to use a pencil. ECF 7-1, PageID# 65.
(2) Denial of Access to the Courts - First Amendment
Claim 2: Plaintiff alleges he has been denied access to the Court because FCI Hazelton staff denied the administrative remedies he filed. ECF 7, PageID# 48.
Claim 3: Plaintiff alleges he has three separate lawsuits pending and Plaintiff claims that he is improperly limited to only one hour per week of library research. ECF 7, PageID# 48.
Claim 7: Plaintiff alleges that the warden told him that “BP-9s tend to get lost or thrown away” and that the warden “condones his staff to [purposely] throw my administrative remedies away.” ECF 7-1, PageID# 52-53.
Claim 8: Plaintiff alleges that FCI Hazelton staff are “playing” with his mail sent from FCI Hazelton to Charleston, West Virginia. ECF 7-1, PageID# 53.
Claim 11: Plaintiff alleges that his case manager at FCI Hazelton refused to notarize legal documents for him and told him that he doesn't “understand French fry talk.” ECF 7-1, PageID# 54.
Claim 14: Plaintiff alleges that his Unit Counselor refused to take a BP-8. ECF 7-1, PageID# 55.
Claim 15: Plaintiff alleges executive staff refused to take an inmate request. ECF 7-1, ...

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