Kevin F. McDonald United States Magistrate Judge

ORDER AND REPORT OF MAGISTRATE JUDGE

Kevin F. McDonald United States Magistrate Judge

This matter is before the court on the defendants' motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (doc. 39) and the plaintiff's motion for costs (doc. 44). The plaintiff, a federal prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2) (D.S.C.), all pretrial matters in this case were referred to the undersigned United States Magistrate Judge for consideration.

PROCEDURAL BACKGROUND

The plaintiff, who is currently incarcerated at the Federal Correctional Institution Berlin (“FCI Berlin”) in Berlin, New Hampshire, filed a complaint on October 28, 2019, against the defendants regarding his previous incarceration at the Federal Correctional Institution Williamsburg (“FCI Williamsburg”) in Salters, South Carolina (doc. 1). The undersigned issued a proper form order on November 6, 2019, instructing the plaintiff that his case was not in proper form for service (doc. 7). After the plaintiff brought his case into proper form, the undersigned issued a second order on December 12, 2019, advising the plaintiff that the court would summarily dismiss the case if the plaintiff failed to correct specified deficiencies (doc. 14). The plaintiff subsequently filed an amended complaint against the defendants in their individual capacities on December 30, 2019, alleging violations of his First, Fourth, Fifth, and Eighth Amendment rights (doc. 18). The plaintiff sought money damages and to have an incident report expunged from his institutional record (id. at 8). On January 15, 2020, the undersigned issued a report and recommendation recommending summary dismissal of the case with prejudice due to the plaintiff failing to correct the specified deficiencies in his amended complaint (doc. 24). The plaintiff filed objections to the report and recommendation on February 3, 2020 (doc. 26).

On September 17, 2020, the Honorable Margaret B. Seymour, Senior United States District Judge for the District of South Carolina, adopted the report and recommendation in part, summarily dismissing the plaintiff's claims but noting that if the plaintiff filed a second amended complaint naming the defendants in their official capacities, “the court will permit the action to proceed solely as to the violation of Plaintiff's First Amendment rights premised on Defendants' retaliatory conduct as alleged in the complaint and limited to the remedy of injunctive relief as described in the complaint” (doc. 28). The plaintiff filed a second amended complaint against the defendants in their official capacities on October 16, 2020, alleging that his First Amendment rights were violated and seeking to have the incident report expunged from his institutional record and that he be “immediately returned to a federal facility in South Carolina” (doc. 31).

On December 17, 2020, the defendants filed a motion to dismiss (doc. 39). By order filed on December 18, 2020, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), the plaintiff was advised of the motion to dismiss procedures and the possible consequences if he failed to respond adequately (doc. 40). The plaintiff filed a response and a motion for costs on January 11, 2021 (docs. 43; 44). The defendants filed a reply to their motion for summary judgment and a response to the plaintiff's motion for costs on January 19, 2021 (docs. 48; 49).

FACTS PRESENTED

In his second amended complaint, the plaintiff alleges that, while he was housed at FCI Williamsburg, Officer Arens sexually harassed him on two occasions during authorized strip searches (doc. 31-1 at 1-2, 3-5). The plaintiff submits that he complained about Officer Arens' behavior verbally and by submitting inmate grievances to Lieutenant McCoy, Unit Manager Henry, and Warden B.M. Antonelli, but that they did nothing to intervene or protect him from further sexual harassment or retaliation (id. at 2-4). The plaintiff further contends that Officer Arens retaliated against him for filing grievances regarding the alleged sexual harassment by submitting a false incident report against him (id. at 2). According to the plaintiff, this incident report resulted in Lieutenant McCoy placing him in the Special Housing Unit (id. at 2, 5). Moreover, the plaintiff alleges that Counselor Blakely and Counselor Graves received a handwritten statement from the plaintiff detailing both incidents of sexual harassment and the retaliation but that they destroyed this handwritten statement and instead made a false statement against the plaintiff to cover up Officer Arens' behavior (id. at 2, 5-6).

The plaintiff submits that, because of these events, the defendants transferred the plaintiff to a high security facility, FCI Berlin, “which is over one thousand miles from his parents” (doc. 31-1 at 2-3, 7-8). Consequently, the plaintiff alleges a violation of his First Amendment rights due to the defendants retaliating against him for filing grievances (id. at 2-3; doc. 31 at 5). The defendants argue that this court lacks jurisdiction as this case is moot because the Bureau of Prisons (“BOP”) has already afforded the plaintiff the equitable relief he sought in his amended complaint (doc. 39 at 2-3). Specifically, in a declaration attached to the defendants' motion, D. Piland, a paralegal for the South Carolina Consolidated Legal Center at the Federal Correctional Institution, Edgefield, South Carolina, attests that the disciplinary action at issue here for Incident Report No. 3182996 has been expunged from the plaintiff's chronological disciplinary record (doc. 39-1, Piland decl. ¶¶ 1-6).

APPLICABLE LAW AND ANALYSIS

Standard of Review

The defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(1) on the basis that the plaintiff's case is now moot. “The appropriate means for challenging the mootness of a case is a motion under [Rule] 12(b)(1).” Est. of Peeples v. Barnwell County Hosp., C/A No. 1:13-01678, 2014 WL 607586, at *5 (D.S.C. Feb. 18, 2014) (citation omitted). A motion under Rule 12(b)(1) challenges a court's subject matter jurisdiction over the pending dispute. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). A Rule 12(b)(1) motion can be presented in two ways. First, the movant may contend that “a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Id. When presented with this contention, the court assumes that the allegations in the complaint are true and affords the plaintiff the same procedural protection that he would receive under Rule 12(b)(6). Id. Second, the movant may raise a factual attack against the complaint, alleging that the jurisdictional allegations of the complaint are not true. Id. Then, a court “is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams, 697 F.2d at 1219). The burden of proving that a court has subject matter jurisdiction rests with the plaintiff, as he is the party asserting it. Johnson v. North Carolina, 905 F.Supp.2d 712, 719 (W.D. N.C. 2012). However, the court should grant dismissal “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id. Here, the defendants “are bringing a factual challenge to this court's jurisdiction over the plaintiff's complaint, alleging that subsequent developments have removed the factual basis for jurisdiction. As such, this court may consider evidence outside the pleadings without converting the motion to one for summary judgment.” Cochran v. Ballard, C/A No. 2:17-CV-04312, 2019 WL 2323742, at *6 (S.D. W.Va. May 8, 2019) (citations omitted), R&R adopted by 2019 WL 2323882 (S.D. W.Va. May 30, 2019).

Mootness

The defendants argue that the court should dismiss the plaintiff's case as moot because the BOP has already afforded the plaintiff the sole injunctive relief that he sought in his amended complaint by expunging his disciplinary record of the incident report (doc. 39 at 2). The plaintiff, however, argues that he has not received all of the injunctive relief that he seeks because he has not been transferred back to a federal facility in South Carolina (doc. 42 at 1, 6).

“[T]he doctrine of mootness constitutes a part of the constitutional limits of federal court jurisdiction, which extends only to actual cases or controversies[.]” Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017) (internal quotation marks and citations omitted). “[A] case is moot when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the out-come.” Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007). Stated differently, a case is moot when “resolution of an issue could not possibly have any practical effect on the outcome of the matter.” Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir. 2010). For a case to be moot, it must lack at least one of the three elements of standing: “(1) injury in fact, (2) causation, or (3) redressability.” Townes v. Jarvis, 577 F.3d 543, 546-47 (4th Cir. 2009). “[E]ven if a plaintiff has standing when he or she files a complaint, subsequent events can moot the claim.” Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013).

As set out above, in deciding whether to summarily dismiss the plaintiff's amended complaint, Judge Seymour permitted the plaintiff to file a second amended complaint but unequivocally limited the plaintiff to recovering “injunctive relief as described in the complaint” (doc. 28 at 6). Moreover, Judge Seymour detailed the injunctive relief that the plaintiff sought as “an order directing Defendants to withdraw the incident report” (id. at 5). Consequently, the plaintiff is limited to recovering the injunctive relief that he set forth in the operative complaint at the time of Judge Seymour's order, that being his amended complaint, in which he requested that Officer Arens' incident report against him be expunged from his institutional record (doc. 18 at 8). While the plaintiff discussed in detail that the defendants unconstitutionally retaliated against him by transferring him to New Hampshire, he did not request a transfer back to South Carolina in his amended complaint. Thus, based on Judge Seymour's limitation, the plaintiff is not entitled to a remedy that he did not timely request.

The plaintiff also appears to argue that his case is not moot because it falls under two exceptions to the mootness doctrine: (1) conduct capable of repetition while evading review and (2) voluntary cessation (doc. 42 at 5-6). The conduct capable of repetition while evading review exception “applies when (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Lux v. Judd, 651 F.3d 396, 401 (4th Cir. 2011) (citation and internal quotation marks omitted). Moreover, voluntary cessation “seeks to prevent a manipulative litigant from immunizing itself from suit indefinitely, altering its behavior long enough to secure a dismissal and then reinstating it immediately after.” Porter, 852 F.3d at 364 (citations and internal quotation marks omitted).

Here, as argued by the defendants, the plaintiff's contentions fail because he is no longer housed at FCI Williamsburg and thus cannot be subject to repetitive or reinstated conduct from the defendants. Moreover, the plaintiff has not shown a reasonable expectation of being transferred back to FCI Williamsburg. See Incumaa, 507 F.3d at 286-89 (finding that a transfer of an inmate to a location where he cannot be subject to the challenged policy renders the challenge moot and noting that “[s]uch conjecture as to the likelihood of repetition has no place in the application of this exceptional and narrow grant of judicial power to hear cases for which there is in fact a reasonable expectation of repetition. There must be a demonstrated probability that the challenged action will recur again, and to the same complainant.”) (internal citations and quotation marks omitted); Battle v. Metts, C/A No. 8:07-cv-466-GRA-BHH, 2008 WL 2704870, at *1-2 (D.S.C. July 8, 2008) (finding that a plaintiff's claim did not fall under the “capable of repetition while evading review” exception and noting that “Plaintiff argues that if he is returned to LCDC he will likely be subjected to the same conduct, but he does not argue that he has a reasonable expectation of being returned to LCDC.”). Thus, the plaintiff's claim does not fall under these exceptions.

Accordingly, because the plaintiff has been afforded the sole permissible injunctive relief through the BOP expunging his record of the incident report, the plaintiff's claim is no longer redressable and is therefore moot. However, even if the district court finds that the plaintiff requested a transfer to South Carolina based on his allegations of the defendants' retaliatory transfer in his amended complaint, the plaintiff's claim still fails as discussed below.

Request for a Transfer

The defendants argue that even if the court considers the plaintiff's request for a transfer to a prison in South Carolina, the remedy he seeks is a decision for the BOP and not reviewable by this court (doc. 49 at 3-4). The plaintiff, however, argues that a court can review an inmate's placement when the inmate is transferred in violation of his constitutional rights (doc. 42 at 8-10).

It is well-settled that there is no constitutional right for a prisoner to be housed at a particular institution or at a particular custody level. See Pardo v. Fed. Corr. Inst. Petersburg, No. 94-6035, 1994 WL 95888, at *1 (4th Cir. 1994) (“A federal prisoner has no constitutional right to be housed in the institution of his choice unless federal law or regulations create a liberty interest by imposing substantive limitations on prison officials' exercise of discretion in making prison transfers. . . . No such limiting law or regulation exists.” (citing Olim v. Wakinekona, 461 U.S. 238, 245-49 (1983); Meachum v. Fano, 427 U.S. 215, 225 (1976)); Pearson v. Turner, C/A No. 9:12-1747-TMC-BM, 2013 WL 1115931, at *3 (D.S.C. Feb. 21, 2013) (citations omitted). Moreover, the BOP is statutorily given authority regarding the transfer of prisoners. See 18 U.S.C. § 3621(b) (“The [BOP] may at any time . . . direct the transfer of a prisoner from one penal or correctional facility to another . . . . Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.”). However, prison officials do not have the discretion to place an inmate in a particular institution for constitutionally impermissible reasons. See Olim, 461 U.S. at 248 n.9; Garland v. Polley, 594 F.2d 1220, 1222-23 (8th Cir. 1979).

The plaintiff cites numerous cases purporting to support his argument that the court should order the BOP to transfer him to a facility in South Carolina (doc. 42 at 8-11). However, while some of these cases indicate that a plaintiff cannot be transferred for constitutionally impermissible reasons, none of the cases involve Bivens actions, where § 3621(b) governs and where courts grant the injunctive relief of ordering the transfer of an inmate to a particular facility. See, e.g., Murphy v. Missouri Dep't of Corr., 769 F.2d 502, 503 (8th Cir. 1985) (remanding case and noting that “prison officials do not have the discretion to punish an inmate for exercising his First Amendment rights by transferring him to a different institution.”); Garland, 594 F.2d at1222-23 (remanding case and finding that summary judgment was improper due to the existence of a genuine issue as to whether the plaintiff's transfer violated the Constitution); McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979) (remanding case and recognizing that a prisoner may “establish a claim under § 1983 if the decision to transfer him was made by reason of his exercise of constitutionally protected First Amendment freedoms”); Sisneros v. Nix, 884 F.Supp. 1313 (S.D. Iowa 1995) (ordering the defendants to return an inmate to a particular facility in a § 1983 action against state officials, where § 3621(b) does not control).

Moreover, this court's research revealed no instances of courts ordering a transfer of an inmate to a particular facility in a Bivens action. Rather, courts applying § 3621 (b) consistently find that they are without jurisdiction to review and order the transfer of an inmate to a particular prison. See, e.g., Jiau v. Tews, 812 Fed.Appx. 638, 639 (9th Cir. 2020) (finding that a district court correctly concluded that it lacked jurisdiction over a challenge to an inmate's placement because a designation of a place of imprisonment is not reviewable by any court under 18 U.S.C. § 3621(b)); United States v. Clark, No. 5:18-cr-466-FL-1, 2020 WL 7360687, at *1 (E.D. N.C. Dec. 15, 2020) (finding that the court was without jurisdiction to order the BOP to place the defendant in a particular location and noting that the BOP “has exclusive authority to determine defendant's place of imprisonment” and that the BOP's placement decisions are not reviewable by any court.); Johnson v. Johnson, C/A No. 1:17-00608, 2018 WL 4374231, at *12 (S.D. W.Va. June 5, 2018) (“The classification and transfer of federal prisoners falls within the broad discretion of the [BOP] and Courts lack authority to order that a prisoner be confined to any particular institution.”). Consequently, the plaintiff's requested relief of a transfer to a facility in South Carolina is unavailable in this action. Therefore, the defendants' motion to dismiss should be granted.

Motion for Costs

Along with his response to the defendants' motion to dismiss, the plaintiff moves for his costs pursuant to Federal Rule of Civil Procedure 54(d)(1) as the prevailing party in this action (doc. 44 at 12). However, as argued by the defendants, the plaintiff's motion is, at best, premature because final judgment has not been issued and the plaintiff has not been found to be the prevailing party in this case. Accordingly, the plaintiff's motion for costs is denied.

CONCLUSION AND RECOMMENDATION

Now, therefore, based upon the foregoing, IT IS ORDERED that the plaintiff's motion for costs under Rule 54(d)(1) (doc. 44) is denied, and

IT IS RECOMMENDED that the defendants' motion to dismiss for lack of subject matter jurisdiction (doc. 39) be granted.

IT IS SO RECOMMENDED.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

300 East Washington Street

Greenville, South Carolina 29601

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).