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Johnson v. Ice

United States District Court, Northern District of West Virginia
Jun 13, 2024
Civil Action 3:23-CV-110 (GROH) (N.D.W. Va. Jun. 13, 2024)

Opinion

Civil Action 3:23-CV-110 (GROH)

06-13-2024

DENNIS JAMES JOHNSON, Plaintiff, v. OFFICER ICE, CHAPLAIN HONG, and LT. BONNELL, Defendants.


REPORT AND RECOMMENDATION

ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

On April 28, 2023, the pro se Plaintiff, a federal prisoner who is incarcerated at Gilmer FCI, in Glenville, West Virginia, initiated this case by filing an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), claiming his Constitutional rights were violated. ECF No. 1. The Plaintiff filed an amended complaint [ECF No. 11] on June 20, 2023, a second amended complaint [ECF No. 20] on September 5, 2023, a third amended complaint [ECF no. 36] on February 28, 2024, and a fourth amended complaint [ECF No. 43] on April 1, 2024.

All CM/ECF numbers cited herein are from the instant case, 3:23-CV-110, unless otherwise noted.

The fourth amended complaint is now before the undersigned for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that the complaint be dismissed without prejudice.

II. FACTUAL AND PROCEDURAL HISTORY

A. Plaintiff's Complaint

The Plaintiff initiated this action alleging his rights were violated while he was incarcerated at Gilmer FCI located in the Northern District of West Virginia. The Plaintiff's fourth amended complaint alleges four claims for relief, that: (1) from May through July 2023, the Plaintiff was permitted to practice his religion, but that Chaplain Hong violated his religious rights when “Hong refused to provide the Plaintiff with any of the religious items that were needed to [perform] his religious services” and repeatedly denied the Plaintiff the right to perform services in the chapel from August through November 2023 [ECF No. 43 at 7, 10]; (2) Hong violated the Plaintiff's Eighth Amendment rights from August through November 2023, as retaliation after the Plaintiff filed his civil complaint against institutional staff members, and further, Hong refused to supply or order religious supplies for the Plaintiff's religion [Id. at 9, 11-12]; (3) Lt. Bonnell violated the Plaintiff's Eighth Amendment rights in retaliation for the Plaintiff's filing of a civil complaint against Ms. A. Smith, the unit secretary and notary, that Bonnell asserted the Plaintiff “had a problem with female staff,” that Bonnell escorted the Plaintiff to administrative confinement, and that after the Plaintiff's release from administrative confinement had the Plaintiff moved to his unit where Officer Lee worked [Id. at 9, 13-14]; and (4) Officer Ice violated the Plaintiff's Eighth Amendment rights by retaliating against the Plaintiff “for filing the civil compliant against him for the attempted sexual assault and the sexual harassment” [Id. at 9, 15].

An August 22, 2023, email which the Plaintiff filed as an exhibit, states that his religious beliefs and practices are that of the “Ethiopian faith.” ECF No. 43-1 at 8-9. According to the same exhibit, the Plaintiff received a response from Religious Services dated August 26, 2023, which states, “Ethiopian faith is not an authorized religion in BOP at this time.” Id.

The Plaintiff's initial complaint filed April 28, 2023, alleged that Ice “subject[ed] the Plaintiff to sexual harassment and attempted sexual assault.” ECF No. 1 at 7-8. The Plaintiff's fourth amended complaint does not assert any claim of sexual harassment or attempted sexual assault. ECF No. 43.

The Plaintiff contends both that he exhausted his administrative remedies, and he further states that the acts complained of in his initial complaint do not need to be exhausted. Id. at 4. He attached as exhibits no copies of administrative remedies from 2023 through 2024. He did attach copies of an administrative remedy from 2019, including his Central Office Appeal for Remedy ID number 948025-A2, dated April 18, 2019, related to the Plaintiff's religious practices. ECF No. 43-1 at 2-4, The Plaintiff does not assert that he incurred any injuries as a result of the complained-of conduct. ECF No. 43 at 15. For relief, the Plaintiff asks for: (1) Hong to be removed from his position as institutional chaplain; (2) Hong to pay him $2,500,000.00 in damages; (3) Bonnell to pay him $300,000.00; (4) Bonnell to be removed from his position as shift supervisor; and (5) Ice to pay him $4,000,000.00. Id.

The Plaintiff makes the same assertion in the original, amended, second amended, and third amended complaints, although the claims asserted vary in each.

On March 4, 2024, the same date that he filed his third amended complaint, the Plaintiff filed a motion for injunctive relief. ECF No. 37. The undersigned filed a Report and Recommendation as to that motion on April 10, 2024. ECF No. 47.

B. Prior Proceedings

On January 27, 2023, the Plaintiff filed a Petition for Writ of Habeas Corpus in this district, case number 5:23-CV-26. Therein, he alleged that his constitutional rights were violated; that Officer Ice made harassing sexual comments toward him, destroyed his religious materials and shrine in retaliation for not engaging in sexual conversation, and that other BOP staff covered up the incident. For relief, he asked that criminal charges be brought against the officer for attempted sexual assault and sexual harassment and against other staff for covering up a criminal offense. 5:23-CV-26, ECF No. 1. A Report and Recommendation was filed on March 3, 2023, which recommended the petition be denied and dismissed without prejudice for failure to state a claim because the claims contained therein asserted civil rights violations, and did not challenge the fact or duration of his confinement. 5:23-CV-26, ECF No. 12. On March 22, 2023, the District Court adopted the Report and Recommendation and dismissed the action. The instant case was filed approximately one month later.

III. LEGAL STANDARDS

A. Pro Se Litigants.

Courts must read pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by statute). The Supreme Court in Neitzke recognized that:

Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under
Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit. . .
490 U.S. at 327.

The version of 28 U.S.C. § 1915(d) which was effective when Neitzke was decided provided, “The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” As of April 26, 1996, the statute was revised and 28 U.S.C. § 1915A(b) now provides, “On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."

“While the courts liberally construe pro se pleadings as a matter of course . . ., judges are not also required to construct a party's legal arguments for him.” Small v. Endicott, 998 F.2d 411, 417- 18 (7th Cir. 1993) (quoting Haines v. Kerner).

B. Civil Rights Actions Under Bivens.

In Bivens, supra, the Supreme Court recognized that claimants may assert a cause of action for damages caused by federal agents. In FDIC v. Meyer, 510 U.S. 471, 484 - 86 (1994), the Court held that federal agencies may not be held liable in a Bivens claim, writing, “Bivens from its inception has been based . . . on the deterrence of individual officers who commit unconstitutional acts.” Id. See Correctional Services Corp. v. Malesko, 534 U.S. 61, 71 (2001).

Pursuant to Bivens, an individual federal agent may be found liable for actions “in excess of the authority delegated to him.” 403 U.S. at 397. “The purpose of Bivens is to deter individual federal officers from committing constitutional violations.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001). The Supreme Court further explained in Malesko:

If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP. With
respect to the alleged constitutional deprivation, his only remedy lies against the individual.
534 U.S. at 72. Further, in a Bivens case, the Plaintiff must specify the acts taken by each defendant which violate his Constitutional rights. Wright v. Smith, 21 F.3d 496, 501 (2nd Cir. 1994); See Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3rd Cir. 1988) (“section 1983 claims [have] the additional pleading requirement that the ‘complaint contain a modicum of factual specificity identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs'”).

The Court notes that Bivens actions and § 1983 actions are both civil rights actions, and that Bivens actions regarding deprivation of civil rights are the federal counterpart to state actions authorized by 42 U.S.C. § 1983.

C. Exhaustion of Administrative Remedies

The Bureau of Prisons' Program Statement (BOP PS) 1330.18 § 542.10 et seq.,addresses the Bureau's Administrative Remedy Program, and directs inmates on the processes necessary to exhaust their administrative remedies by filing four mandatoryremedies: (1) an informal resolution (BP-8); (2) an administrative remedy at the facility (BP-9); (3) an appeal to the regional office (BP-10); and (4) a final appeal to the central office (BP-11). Failure to complete all four mandatory remedies is fatal to a claim based on the inmate's failure to exhaust administrative remedies.

See https://www.bop.gov/policy/progstat/1330 018.pdf.

Inmates who are incarcerated in Community Corrections Centers (CCCs) are not required to attempt informal resolution. BOP PS 1330.18 § 542.13.b.

Many BOP institutional handbooks refer to the Informal Resolution Form as the BP-8 form. See:

1. FCI Waseca https://www.bop.gov/locations/institutions/was/was ao handbook eng 031517.pdf;
2. FCI Oxford https://www.bop.gov/locations/institutions/oxf/OXF aohandbook.pdf;
3. FPC Schuylkill https://www.bop.gov/locations/institutions/sch/SCH camp aohandbook.pdf;
4. USMC Springfield https://www.bop.gov/locations/institutions/spg/spg ao handbook050917.pdf;
5. USP Lewisburg https://www.bop.gov/locations/institutions/lew/LEW smu aohandbook.pdf;
6. FDC Tallahassee https://www.bop.gov/locations/institutions/tal/TAL fdc aohandbook.pdf;
7. FCI Fort Dix https://www.bop.gov/locations/institutions/ftd/FTD aohandbook.pdf; and
8. USP/SCP McCreary https://www.bop.gov/locations/institutions/mcr/MCR aohandbook.pdf.

The Fourth Circuit recognizes the process that inmates must follow to exhaust administrative remedies:

The BOP grievance process is set forth at 28 C.F.R. § 542.13-.15 (2009). First, an inmate normally must present his complaint informally to prison staff using a BP-8 form. If the informal complaint does not resolve the dispute, the inmate may make an “Administrative Remedy Request” to the prison Warden using a BP-9 form. The BP-8 and BP-9 forms are linked. Both forms involve a complaint arising out of the same incident and both must be submitted within twenty calendar days of the date of that incident. 28 C.F.R. § 542.14(a). If the Warden renders an adverse decision on the BP-9, the inmate may appeal to the Regional Director within twenty calendar days of the date the Warden signed the response, using a BP-10 form. 28 C.F.R. § 542.15(a). The inmate may appeal an adverse decision by the Regional Director to the Central Office of the BOP using a BP-11 form. Id. Hill v. Haynes, 380 Fed.Appx. 268, 269, n.1 (4th Cir. 2010).

IV. ANALYSIS

A. Failure to Exhaust Administrative Remedies

Under the Prison Litigation Reform Act (PLRA), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983, or any other federal law, must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). “Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions. Failure to exhaust may only be excused upon a showing of cause and prejudice.” McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (citing Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634-35 (2d Cir.2001), Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir.1981)). Exhaustion as provided in § 1997e(a) is mandatory, regardless of the relief offered through administrative procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). Because exhaustion is a prerequisite to suit, all available administrative remedies must be exhausted prior to filing a complaint in federal court. Porter v. Nussle, 534 U.S. 516, 524 (2002) (citing Booth, 532 U.S. at 741). “Those remedies need not meet federal standards, nor must they be ‘plain, speedy, and effective.'” Porter, 534 U.S. at 524.

The Plaintiff contends in his fourth amended complaint that he was not only exempt from exhausting his administrative remedies, but also that he exhausted his administrative remedies prior to filing the complaint. ECF No. 43 at 5. The Plaintiff asserts that there is a prisoner grievance procedure at the institution where the events occurred and that he filed a grievance concerning those facts. Id. In the next paragraph the Plaintiff states, “[t]he initial complaint/act that was reported by the Plaintiff is not included in the BOP Program Statement for [administrative] remedies and must be filed with the Office of the Inspector General to which the Plaintiff did file a complaint to.” Id. However, the Plaintiff fails to identify any grievance number or provide copies of the same. Id.

BOP Program Statement 1330.18 §115.52 provides that: Exhaustion of administrative remedies. (a) An agency shall be exempt from this standard if it does not have administrative procedures to address inmate grievances regarding sexual abuse. The Federal Bureau of Prisons has an administrative remedy system, and therefore section 115.52 (a) does not apply. The following sections, 115.52 (b) through 115.52 (g), apply to inmates seeking a formal review of issues relating to sexual abuse. For any issue not specified in sections 115.52 (b) through 115.52 (g) below, the administrative remedy system outlined in Sections 1 through 15 of this Program Statement applies.

Moreover, the Plaintiff's fourth amended complaint does not assert any claims of sexual harassment, or attempted sexual assault. Accordingly, the requirements of exhaustion of administrative remedies apply to the claims contained in the fourth amended complaint.

As recognized in Carmona, supra, which was cited by the Fourth Circuit in its opinion in McClung:

[T]he interests of judicial economy and accuracy are served by requiring that, absent a showing of cause and prejudice, appeals proceed in the first instance through the federal agency review process. Following the administrative procedures could potentially obviate the need for judicial review, or at a minimum, develop the factual record at the agency level at a time when the disputed events are still relatively fresh in witnesses' minds. In this sense, it is the analogue of the exhaustion of state remedies requirement for a state prisoner seeking federal habeas review, and the results governing failure to take this path should be the same.
Administrative autonomy is also served by requiring that a federal prisoner justify his failure to exhaust his intra-Bureau remedies. When, however, legitimate circumstances beyond the prisoner's control preclude him from fully pursuing his administrative remedies, the standard we adopt excuses this failure to exhaust.
Carmona, 243 F.3d at 634 (internal citations omitted).

The Bureau of Prisons' Program Statement (BOP PS) 1330.18 § 542.10 et seq., addresses the Bureau's Administrative Remedy Program, and directs inmates on the processes necessary to exhaust their administrative remedies by filing four mandatory remedies: (1) an informal resolution (BP-8); (2) an administrative remedy at the facility (BP-9); (3) an appeal to the regional office (BP-10); and (4) a final appeal to the central office (BP-11). The Plaintiff, by his own admission, failed to complete any of the four mandatory administrative remedies. This failure to exhaust administrative remedies ignores the standard recognized by the Fourth Circuit in Hill v. Haynes, 380 Fed.Appx. 268, 269, n.1 (4th Cir. 2010). First, the Plaintiff failed to present his complaint informally to prison staff using a BP-8 form. Second, the Plaintiff failed to obtain any response to his informal complaint, and file an “Administrative Remedy Request” to the prison Warden using a BP-9 form. Third, the Plaintiff failed to obtain any adverse decision on the BP-9 from the warden, then appeal to the Regional Director using a BP-10 form. Fourth, the Plaintiff failed to appeal any adverse decision by the Regional Director to the Central Office of the BOP using a BP-11 form.

See https://www.bop.gov/policY/proqstat/1330 018.pdf.

Inmates who are incarcerated in Community Corrections Centers (CCCs) are not required to attempt informal resolution. BOP PS 1330.18 § 542.13.b.

Many BOP institutional handbooks refer to the Informal Resolution Form as the BP-8 form. See:

9. FCI Waseca https://www.bop.gov/locations/institutions/was/was ao handbook eng 031517.pdf;
10. FCI Oxford https://www.bop.gov/locations/institutions/oxf/OXF aohandbook.pdf;
11. FPC Schuylkill https://www.bop.gov/locations/institutions/sch/SCH camp aohandbook.pdf;
12. USMC Springfield https://www.bop.gov/locations/institutions/spg/spg ao handbook050917.pdf;
13. USP Lewisburg https://www.bop.gov/locations/institutions/lew/LEW smu aohandbook.pdf;
14. FDC Tallahassee https://www.bop.gov/locations/institutions/tal/TAL fdc aohandbook.pdf;
15. FCI Fort Dix https://www.bop.gov/locations/institutions/ftd/FTD aohandbook.pdf; and
16. USP/SCP McCreary https://www.bop.gov/locations/institutions/mcr/MCR aohandbook.pdf.

In his complaint the Plaintiff does not allege that he was prevented from filing any level of his administrative remedy. Nor does the Plaintiff contend that any employee prevented him from doing so, or refused to provide him with the necessary forms to file the mandatory administrative remedies at any level of the process, or that he was otherwise denied the opportunity to do so. Rather, the Plaintiff elected not to file an administrative remedy because he contends he could not obtain damages from the institution. ECF No. 43 at 4-5. This alone is insufficient to excuse the exhaustion requirement. Accordingly, because the Plaintiff has not exhausted his administrative remedies, and has not been prevented from doing so, this matter is premature, and should be dismissed without prejudice.

In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 - 95 (1998), the Supreme Court wrote that “without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” See also Reinbold v. Evers, 187 F.3d 348, 359 n. 10 (4th Cir. 1999). Because this court lacks jurisdiction, this court cannot entertain the petition.

B. Failure to Allege a Physical Injury

Moreover, even if the Plaintiff had exhausted his administrative remedies, a review of the fourth amended complaint pursuant to 28 U.S.C. § 1915A(b), reveals that Plaintiff fails to present a claim upon which relief can be granted. The Prison Litigation Reform Act (PLRA) of 1996, placed an important limitation upon all actions arising from incarceration, requiring proof of physical injury arising from the allegedly unconstitutional condition. Under 42 U.S.C. § 1997e(e), no recovery of monetary damages is allowed for emotional stress:

No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18).
See Munn Bey v. Department of Corrections, 839 F.Supp.2d 1 (D.D.C. 2011), Here, the Plaintiff seeks a total of $6,800,000 in monetary damages for alleged violations of his rights under the First and Eighth Amendment rights. ECF No. 43 at 15. However, the Plaintiff does not allege he suffered any physical ailment or injury. The Plaintiff failed to write anything in section “VI. INJURY” of the Court-approved form. See ECF No. 43 at 15. Further, he fails to allege elsewhere that he incurred any physical injuries as a result of the events he describes in his complaint. Even if Plaintiff had stated a claim upon which relief could be granted, he is ineligible to receive monetary damages unless he has demonstrated prior physical injury, which is not present here. Accordingly, Plaintiff is not entitled to monetary relief, and his claim must be dismissed.

Further, the undersigned notes that dismissal of the Plaintiff's fourth amended complaint would be appropriate here because he fails to assert any cause of action recognized under Bivens, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), or Egbert v. Boule, 596 U.S. 482, 142 S.Ct. 1793, 1802, 213 L.Ed.2d 54 (2022).

V. RECOMMENDATION

For the foregoing reasons, the undersigned RECOMMENDS that Plaintiff's fourth amended complaint be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.

Within fourteen (14) days after being served with a copy of this Recommendation, any party may file with the Clerk of the Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the Honorable Gina M. Groh, United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitation, consistent with LR PL P 12.

Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); 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).

This Report and Recommendation completes the referral from the district court. The Clerk is directed to terminate the Magistrate Judge's association with this case.

The Clerk is directed to provide a copy of this Report and Recommendation to the pro se Plaintiff by certified mail, return receipt requested, to his last known address as reflected on the docket sheet, and to all counsel of record, as applicable, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.


Summaries of

Johnson v. Ice

United States District Court, Northern District of West Virginia
Jun 13, 2024
Civil Action 3:23-CV-110 (GROH) (N.D.W. Va. Jun. 13, 2024)
Case details for

Johnson v. Ice

Case Details

Full title:DENNIS JAMES JOHNSON, Plaintiff, v. OFFICER ICE, CHAPLAIN HONG, and LT…

Court:United States District Court, Northern District of West Virginia

Date published: Jun 13, 2024

Citations

Civil Action 3:23-CV-110 (GROH) (N.D.W. Va. Jun. 13, 2024)