United States District Court, N.D. West Virginia
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS OR,
IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
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.
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plaintiff's supervised release was revoked, and he was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.
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
(1) Conditions of Confinement - Eighth
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,
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,
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
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,
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,
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, ...