El v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jaame Amun Re El
v. 	Case No. 19-cv-647-JL
Warden Robert Hazlewood,
FCI Berlin et al.1
REPORT AND RECOMMENDATION
Plaintiff, Jaame Amun Re El, an inmate at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”), filed this action seeking a damages remedy pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narc., 403
U.S. 388 (1971), and seeking injunctive relief for alleged
violations of his federal constitutional rights. 	Mr. El alleges
in this action that defendant FCI Berlin officers and
administrators violated his rights under the United States
Constitution, federal criminal statutes, and prison policy.
1The caption of the complaint identifies Federal
Correctional Institution, Berlin, New Hampshire (“FCI Berlin)
Warden Robert Hazlewood as the sole defendant to this case. 	In
the narrative of the complaint, the plaintiff identifies the
following additional defendants: FCI Berlin; FCI Berlin Mailroom
Officer Melainson, whose first name is not known (“FNU”); FCI
Berlin Corrections Officers Scott Tawes, FNU Flynn, FNU Farren,
FNU Burnside, G. Perreault, A. McCormack; FCI Berlin Mailroom
Officer S. Godinez; and unnamed FCI Berlin Mailroom Officers.
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The complaint (Doc. No. 1), amended complaint (Doc. No. 5),
and complaint addenda (Doc. Nos. 9-13, 15, 18-25, 27, 30-34)
filed in this matter are before this court for preliminary
review pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1).2 	Also
before the court for consideration and a recommended decision
are Mr. El’s motion for summary judgment (Doc. No. 13) and
motion for default (Doc. No. 22).
Preliminary Review
I. 	Standard
The court conducts a preliminary review of prisoners’
complaints seeking relief from government agents. 	See 28 U.S.C.
§ 1915A(a); LR 4.3(d)(1). 	In considering whether a pro se
complaint states a claim, the court construes the pleading
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). 	The court then determines whether, stripped of legal
conclusions, and with all reasonable inferences construed in
plaintiff’s favor, the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
The court may dismiss claims, sua sponte, if the court lacks
2The court considers the complaint (Doc. No. 1), amended
complaint (Doc. No. 5), and complaint addenda (Doc. Nos. 9-13,
15, 18-25, 27, and 30-34), together, to be the operative
complaint in this matter for all purposes.
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jurisdiction, a defendant is immune from the relief sought, or
the complaint fails to state a claim upon which relief may be
granted. 	See 28 U.S.C. § 1915A(b); LR 4.3(d)(1)(A).
II. 	Background and Claims
The court liberally construes the complaint documents to
assert the following claims for relief:
1. 	During and after January 2019, defendant FCI Berlin
Mailroom Officer Melainson and other unnamed FCI Berlin
Mailroom officers, violated Mr. El’s rights by interfering
with his legal mail, as follows:
a. 	In January 2019, after opening a letter Mr. El
received from his attorney in Mr. El’s presence,
Officer Melainson removed, looked through, and read
the documents in the mailing, which included Mr. El’s
2018 tax forms, without Mr. El’s permission, in
violation of:
i. 	the Sixth Amendment;
ii. 	28 C.F.R. § 540.18; and
iii. 18 U.S.C. § 1341.
b. 	Officer Melainson and FCI Berlin Corrections
Officers (“COs”) Flynn, Farren, and Burnside caused
Mr. El’s mail from his attorney, including Mr. El’s
tax forms, to be returned to his attorney on the basis
that Mr. El was not permitted to possess tax forms
under prison policy, and defendants further failed to
provide Mr. El information as what law or policy
supported the decision to return Mr. El’s legal mail,
in violation of:
i. 	the Sixth Amendment;
ii. 	28 C.F.R. § 540.18; and
iii. 18 U.S.C. § 1341.
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c. 	Unnamed FCI Berlin Mailroom Officers signed for
and/or opened eight letters Mr. El received from his
attorney at the Northern District of Georgia Federal
Public Defenders Office, which arrived in envelopes
marked “Special Mail – Open Only in the Presence of
Inmate per 28 CFR 540.18,” outside of Mr. El’s
presence, and photocopied and/or damaged the contents
of the letters without Mr. El’s permission, in
violation of:
i. 	the Sixth Amendment;
ii. 	28 C.F.R. § 540.18; and
iii. 18 U.S.C. § 1341.
d. 	Unnamed FCI Berlin officers signed for and/or
opened two letters Mr. El received from
“EOUSA/DOJ/FOIA,” which were marked “Legal Mail – Open
Only in Presence of Inmate,” outside of Mr. El’s
presence and without Mr. El’s permission, in violation
of:
i. 	the Sixth Amendment;
ii. 	28 C.F.R. § 540.18; and
iii. 18 U.S.C. § 1341.
e. 	On July 31, 2019, Mr. El received “Special Mail”
from the “Office of the Inspector General/Federal
Housing Finance Agency” through his Unit Officer
rather than through the FCI Berlin Mailroom, in
violation of:
i. 	28 C.F.R. § 540.19;
ii. 	Federal Bureau of Prisons (“BOP”) Program
Statement 1210.21; and
iii. 18 U.S.C. § 1341.
f. 	Unnamed FCI Berlin officers caused Mr. El’s legal
mail from the federal district court in Atlanta,
Georgia to be tampered with, damaged, and delayed, and
in one instance, such mail was postmarked August 15,
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2019, but did not reach Mr. El until September 12,
2019, in violation of:
i. 	the First, Fifth, and Sixth Amendments;
ii. 	28 C.F.R. § 540.18; and
iii. 18 U.S.C. § 1341.
2. 	On July 30, 2019, FCI Berlin CO Scott Tawes, in
retaliation for Mr. El’s complaints concerning his legal
mail, stopped Mr. El on his way to his cell after leaving
the law library, and asked to see Mr. El’s closed manilla
envelope which contained legal documents, tax forms, a
notepad, an “Entrepreneur” magazine, and other documents;
CO Tawes told Mr. El to face the wall, walked away with the
contents of Mr. El’s manila envelope, and threatened to put
Mr. El in the Special Housing Unit (“SHU”) if Mr. El
approached him, in violation of:
a. 	Mr. El’s First Amendment right not to be subject
to retaliation for exercising his right to petition
the government for a redress of grievances;
b. 	Mr. El’s Sixth Amendment right not to have his
legal materials interfered with;
c. 	Mr. El’s Eighth Amendment right not to be
harassed and threatened; and
d. 	18 U.S.C. § 1708.
3. 	On September 5, 2019, FCI Berlin CO J. Hulme removed
Mr. El from the “A2” housing unit and placed him in a
holding cell, where Mr. El engaged in prayer pursuant to
his religious practice; CO Hulme then brought Mr. El from
the holding cell to SHU, where he remained for fourteen
days, in violation of:
a. 	Mr. El’s First Amendment free exercise rights;
b. 	Mr. El’s Fifth Amendment equal protection right
not to be subject to religious discrimination;
c. 	Mr. El’s Fifth Amendment right to procedural due
process; and
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d. 	Mr. El’s Eighth Amendment right not to be subject
to cruel and unusual punishment.
4. 	On September 5, 2019, CO Hulme improperly charged Mr.
El with a disciplinary offense for “Interfering with the
Taking of Count” and “Refusing to Obey an[] Order of a
Staff Member,” when Mr. El refused to report for a 4:30
a.m. work shift when directed to do so by an officer, as
Mr. El had been moved to a 6:30 a.m. shift and had been
mistakenly placed on the 4:30 a.m. work schedule, and
subjected Mr. El to a thirty-day loss of email as a
sanction for that disciplinary offense, in violation of Mr.
El’s Eighth Amendment right not to be subjected to cruel
and unusual punishment.
5. 	On September 9, 2019, while being housed in SHU, Mr.
El was subjected to a “Tuberculosis (TB) injection” to
which he did not consent, in violation of:
a. 	Mr. El’s right to private property;
b. 	Mr. El’s First Amendment right not to engage in
conduct which violates his religion;
c. 	Mr. El’s right of access to the courts; and
d. 	Mr. El’s Eighth Amendment right not to be placed
in danger of serious harm during his incarceration.
6. 	On October 29, 2019, FCI Berlin CO G. Perreault
interfered with Mr. El’s outgoing Special/Legal Mail by
seizing and scrutinizing a letter that Mr. El had
designated Special/Legal Mail, and issuing a disciplinary
charge against Mr. El for “Special Mail Abuse,” in
violation of:
a. 	Mr. El’s Fourth Amendment right to be secure from
the unreasonable search and seizure of his papers;
b. 	Mr. El’s Fifth Amendment procedural due process
right not to have a disciplinary report issued against
him that was not signed by a Lieutenant;
c. 	BOP policy;
d. 	18 U.S.C. § 1341; and
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e. 	18 U.S.C. § 1708.
7. 	On December 29, 2019, FCI Berlin Warden Robert
Hazlewood effected a new policy for inmate mail handling,
purportedly for “security reasons,” which provides for
inmates to be given photocopies of incoming general mail
instead of original documents and envelopes, and
photocopies of envelopes containing legal mail instead of
original envelopes, in violation of Mr. El’s:
a. 	First Amendment right to receive incoming general
mail without interference; and
b. 	Sixth Amendment right to receive legal mail
without interference.
8. 	On February 3, 2020, FCI Berlin Mailroom Officer S.
Godinez brought a disciplinary charge against Mr. El for
“Being in Unauthorized Area” when Mr. El attempted to
submit legal mail outside of the posted hours for doing so,
resulting in Mr. El being sanctioned with a ninety-day loss
of good time and email, and the revocation of 54 days good
conduct time, in violation of:
a. 	Mr. El’s First Amendment right to petition the
government for a redress of grievances, as his efforts
to litigate were hampered by:
i. 	his lack of access to the phone and email;
and
ii. 	the time limitations on Mr. El’s ability to
send legal mail from the FCI Berlin Mailroom;
b. 	Mr. El’s Fifth Amendment right to due process, in
that the disciplinary incident resulted in Mr. El
acquiring “points” on his custody status that could
eventually result in his transfer from FCI Berlin to a
maximum security facility;
c. 	Mr. El’s Fifth Amendment right to equal
protection; and
d. 	BOP Policy.
9. 	Warden Hazlewood, acting in his capacity as a
supervisory prison official and prison administrator, was
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aware of the facts underlying the claims Mr. El has
asserted in this action, which are identified and
summarized here as Claims 1-6 and 8, by virtue of Mr. El’s
verbal and written communication with Warden Hazlewood, and
failed to remedy Mr. El’s complaints, in violation of:
a. 	Mr. El’s First, Fifth, Sixth, and Eighth
Amendment rights; and
b. 	BOP policy.
III. Discussion
A. 	Parties
1. 	Plaintiff
The caption of Mr. El’s initial pleading identifies the
plaintiff in this case as “el, jaame amun re o/b/o EL, JAAME
AMUN RE,” and the narrative of the complaint states, “Plaintiffs
are the claimant party.” 	Doc. No. 1, at 1. 	The court presumes
that “el, jaame amun re” and “EL, JAAME AMUN RE” are the same
person. 	Mr. El is the “plaintiff” in this case.
2. 	Defendants
Mr. El refers to the defendants in this case as a “class of
defendants.” 	Doc. No. 1, at 1. 	Mr. El, in his complaint, also
asserts that he is proceeding here pursuant to Rule 23(b) of the
Federal Rules of Civil Procedure. 	See id. 	That rule concerns
class action lawsuits. 	Here, Mr. El identifies the defendant
class as consisting of: FCI Berlin officers, who have worked in
the FCI Berlin Mailroom, and who have opened Mr. El’s legal mail
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which was identified as “Special Mail” or “Legal Mail” outside
of Mr. El’s presence. 	Mr. El states that the number of officers
who make up the defendant class “is not known with precision,
but is believed to exceed ‘1.’” 	Id. 	Mr. El further notes that
there are questions of law and fact in common to the class of
defendants. 	See id.
Mr. El has not moved to certify a class of defendants.
Accordingly, the court need not decide whether the defendants in
this action are properly considered a class. 	In this Report and
Recommendation (“R&R”), the court has identified the defendants
as those FCI Berlin employees identified in Claims 1-9.
B. 	Legal Mail Claims
1. 	Constitutional Claims
a. 	Attorney/Legal Mail (Claims 1(a)(i),
1(b)(i), 1(c)(i), 1(d)(i))
In Claims 1(a)(i), 1(b)(i), 1(c)(i), and 1(d)(i), Mr. El
asserts that his First, Fifth, and Sixth Amendment rights were
violated with regard to legal mail he received from his criminal
attorney during and after January 2019. 	The Sixth Amendment
protects a criminal defendant’s right to the assistance of
counsel in the proceedings against him, which includes the right
to private communication with his attorney without intrusion by
the government. 	See Hudson v. O’Brien, Civil Action No. 09-
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10276-RWZ, 2010 U.S. Dist. LEXIS 73683, at *6-*7, 2010 WL
2900529, at *2 (D. Mass. July 21, 2010).
[I]n determining whether correspondence is legal mail, the
issue does not turn on whether there is an existing
attorney-client relationship regarding an on-going legal
matter; rather, the key issue is whether the attorney and
inmate have a fundamental interest in maintaining the
confidentiality of communications relating to a legal
matter.
ACLU Fund of Mich. v. Livingston Cty., 796 F.3d 636, 644 (6th
Cir. 2015).
Construed as claims for damages and injunctive relief based
on interference with Mr. El’s legal mail, Claims 1(a)(i),
1(b)(i), 1(c)(i), and 1(d)(i) may proceed at this time.3 	In an
Order issued simultaneously with this Report and Recommendation,
the court directs service of those claims on the defendants
identified by name therein, in their individual and official
capacities.4
3The court makes no comment at this time as to whether Mr.
El’s legal mail claims for damages are actionable under Bivens
in light of Ziglar v. Abassi, 137 S. Ct. 1843 (2017). 	The court
declines to undertake that analysis without the parties’
briefing on the issue.
4If Mr. El intends to assert these claims against presently
unnamed defendants, he will have to obtain their full names in
discovery, and properly move to amend his complaint to add
allegations concerning those defendants.
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b. 	Court Mail (Claim 1(f)(i))
In Claim 1(f)(i), Mr. El alleges that his First, Fifth, and
Sixth Amendment rights were violated when his mail from the
court was tampered with, delayed, and destroyed.
Not all mail that a prisoner receives from a legal source
will implicate constitutionally protected legal mail
rights. 	Indeed, even mail from a legal source may have
little or nothing to do with protecting a prisoner’s access
to the courts and other governmental entities to redress
grievances or with protecting an inmate’s relationship with
an attorney.
Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir. 2003).
In general, court mail is a matter of public record and its
inspection does not violate an inmate’s federal rights. 	See
Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987). 	Further, Mr.
El has not demonstrated that the delay in processing one letter
from the court, or any other alleged interference with his court
mail, caused him any actual injury in violation of his right of
access to the courts, cf. Lewis v. Casey, 518 U.S. 343, 351
(1996), or that it has otherwise violated any of his federal
rights, see Anctil v. Fitzpatrick, No. 1:16-CV-00107-JAW, 2018
U.S. Dist. LEXIS 210121, at *35, 2018 WL 6579153, at *13 (D. Me.
Dec. 13, 2018) (inmate’s receipt of “mail from the courts that
was previously opened, or was read to him by a member of staff,
does not establish a constitutional violation”), R&R adopted,
No. 1:16-CV-00107-JAW, 2019 U.S. Dist. LEXIS 20558, at *1-*2,
2019 WL 501467, at *1 (D. Me. Feb. 8, 2019).
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To the extent Mr. El claims violations of his federal
constitutional rights based on the fact that FCI Berlin
employees opened his mail from the court outside of his
presence, Mr. El has failed to state a claim upon which relief
might be granted. 	Accordingly, the district judge should
dismiss Claim 1(f)(i).
2. 	Prison Policy Violations (Claims 1(a)(ii),
1(b)(ii), 1(c)(ii), 1(d)(ii), 1(e)(i)&(ii),
1(f)(ii))
In Claims 1(a)(ii), 1(b)(ii), 1(c)(ii), 1(d)(ii),
1(e)(i)&(ii), and 1(f)(ii), Mr. El asserts that his rights were
violated by the defendants’ failure to follow prison policies
established by the BOP and/or FCI Berlin. 	“An assertion that
prison officials failed to follow prison rules or policies does
not set forth a constitutional claim.” 	McFaul v. Valenzuela,
684 F.3d 564, 579 (5th Cir. 2012); see also Gray v. Perkins, No.
18-cv-874-JL, 2020 U.S. Dist. LEXIS 26128, at *6, 2020 WL
759954, at *2 (D.N.H. Jan. 2, 2020), R&R adopted, No. 18-cv-874-
JL, 2020 U.S. Dist. LEXIS 24810, at *1, 2020 WL 758162, at *1
(D.N.H. Feb. 7, 2020); Querido v. Wall, C.A. No. 10-098 ML, 2010
U.S. Dist. LEXIS 139201 at *14, 2010 WL 5558915, at *3 (Dec. 8,
2010), R&R adopted, 2011 U.S. Dist. LEXIS 1882, 2011 WL 63503
(D.R.I. Jan. 7, 2011).
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Further, the pertinent prison policies governing the
conduct of prison officials in this case do not themselves
provide Mr. El with a private right of action for prison
officials’ violations of those policies. 	For these reasons, Mr.
El has failed to state a claim for relief for the defendants’
violation of prison policies, and the district judge should
dismiss Claims 1(a)(ii), 1(b)(ii), 1(c)(ii), 1(d)(ii),
1(e)(i)&(ii), and 1(f)(ii).
3. 	Claims Based on Criminal Conduct (Claims
1(a)(iii), 1(b)(iii), 1(c)(iii), 1(d)(iii),
1(e)(iii), 1(f)(iii)
In Claims 1(a)(iii), 1(b)(iii), 1(c)(iii), 1(d)(iii),
1(e)(iii), and 1(f)(iii), Mr. El alleges that the defendants’
actions with regard to his legal mail violated the federal
criminal mail fraud statute, 18 U.S.C. § 1341. 	“[A] private
citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.” 	Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973). 	Further, § 1341 does not
give rise to a private cause of action. 	See Thompson v.
Michels, 574 F. App’x 196, 197 (3d Cir. 2014). 	Accordingly, Mr.
El cannot state a claim arising out of the alleged criminal
conduct of the defendants, and the district judge should dismiss
Claims 1(a)(iii), 1(b)(iii), 1(c)(iii), 1(d)(iii), 1(e)(iii),
and 1(f)(iii).
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C. 	Misjoinder of Claims (Claims 2-8)
“A party asserting a claim . . . may join, as independent
or alternative claims, as many claims as it has against an
opposing party.” 	Fed. R. Civ. P. 18(a). 	A plaintiff may join
multiple defendants in a single action if he or she asserts
against each of them at least one claim to relief that arises
out of the same transaction or occurrence, or series of
transactions or occurrences, and presents questions of law or
fact common to all. 	See Fed. R. Civ. P. 20(a)(2)(A), (B); Rice
v. Spencer, No. CIV.A. 2013-12046-RBC, 2014 WL 2453104, at *3,
2014 U.S. Dist. LEXIS 74359, at *8 (D. Mass. May 29, 2014); 7
Charles Alan Wright et al., Fed. Prac. and Proc. § 1655 (3d ed.
2009). 	Nevertheless,
[a] litigant cannot throw all of his grievances, against
dozens of different parties, into one stewpot. 	Joinder
that requires the inclusion of extra parties is limited to
claims arising from the same transaction or series of
related transactions.
Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 683 (7th
Cir. 2012) (“a plaintiff may put in one complaint every claim of
any kind against a single defendant, . . . but a complaint may
present claim #1 against Defendant A, and claim #2 against
Defendant B, only if both claims arise ‘out of the same
transaction, occurrence, or series of transactions or
occurrences’” (citations omitted)).
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To prevent a case from becoming a case management “morass,”
and to prevent litigious prisoner plaintiffs from avoiding the
impact of the so-called three-strikes rule in the Prison
Litigation Reform Act (“PLRA”), unrelated claims brought by
prisoners against different defendants belong in different
suits. 	George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
Since the PLRA “limits to three the number of frivolous suits or
appeals that any prisoner may file without prepayment of the
required filing fees,” allowing such inmates to misjoin claims
and defendants could allow vexatious in forma pauperis inmate
plaintiffs to evade the impact of the three-strikes rule by
joining all of their disparate claims and defendants together.
Id. 	Where claims that should be litigated separately have been
misjoined, this court may dismiss the claims without prejudice
or sever them in its preliminary review. 	See Wheeler, 689 F.3d
at 683 (court that identifies misjoined claims or defendants can
“solve the problem by severance (creating multiple suits that
can be separately screened)” or by “dismissing the excess
defendants”); see generally Fed. R. Civ. P. 21.
In Claims 2-8, Mr. El has alleged events that do not arise
from the same transaction or series of transactions that
underlie the legal mail claims that the court has served.
Further, the allegations underlying Claims 2-8 are distinct in
time from the claims to be served in this action, and name only
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defendants not named in those claims. 	The court finds,
therefore, that Claims 2-8 are misjoined with the claims that
this court has allowed to proceed.
Nothing in the record of this case indicates that any
prejudice would accrue to Mr. El if the court dismisses the
misjoined claims without prejudice to his ability to assert
those claims in new actions. 	Accordingly, the district judge
should dismiss Claims 2-8 without prejudice to Mr. El’s ability
to file new actions asserting those claims.
D. 	Claims Against FCI Berlin
Mr. El identifies FCI Berlin as a defendant in this action.
Although Mr. El does not name FCI Berlin as a defendant to a
particular claim in this case, all of the claims which the court
authorizes to proceed at this time are asserted under Bivens. 	A
plaintiff cannot bring a Bivens action against a federal agency.
See FDIC v. Meyer, 510 U.S. 471, (1994). 	To the extent Mr. El
has alleged any claim for damages against FCI Berlin, therefore,
the district judge should dismiss that claim.
E. 	Prison Supervisors and Administrators – Denial of
Grievances (Claim 9)
In Claim 9, Mr. El alleges that Warden Hazlewood, acting in
his supervisory and administrative capacities, violated Mr. El’s
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First, Fifth, Sixth, and Eighth Amendment rights, concerning the
facts and circumstances underlying Claims 1-6 and 8.
A claimed constitutional violation must be based upon
active unconstitutional behavior. 	The acts of one’s
subordinates are not enough . . . . 	For the same
reason that a supervisory relationship is insufficient
to establish liability for the misconduct of a
subordinate, denying a grievance or failing to act
based on information contained in a grievance is
insufficient to establish § 1983 liability.
Moore v. Mich. Dep’t of Corr., No. 1:17-cv-615, 2017 WL 3431602,
at *7, 2017 U.S. Dist. LEXIS 126885, at *17 (W.D. Mich. Aug. 10,
2017), aff’d, No. 17-6107, 2018 U.S. App. LEXIS 25325 (6th Cir.
Sept. 5, 2018); see also Carter v. Englander, No. 17-cv-52-LM,
2018 U.S. Dist. LEXIS 211168, at *20, 2018 WL 6593934, at *7
(D.N.H. Aug. 22, 2018) (denial of grievance is not a
constitutional violation (citing cases)), R&R approved, No. 17-
cv-52-LM, 2018 U.S. Dist. LEXIS 210843, at *2, 2018 WL 6591227,
at *1 (D.N.H. Dec. 11, 2018).
Mr. El does not allege that, to the extent he is sued in
his supervisory and administrative capacities, Warden Hazlewood
had any direct role in the events underlying Claims 1-6 and 8.
Mr. El, therefore, cannot allege a constitutional claim against
Warden Hazlewood as to Claims 1-6 and 8 based on his own
actions, or on the basis that Warden Hazlewood failed to respond
to his emails and grievances, and the district judge should
dismiss Claim 9 from this action.
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F. 	Injunctive Relief
Mr. El seeks injunctive relief, in that he asks the court
to issue an order directing the defendants not to interfere with
his receipt of legal mail and not to open his legal mail outside
of his presence. 	In the Order issued this date directing
service upon the defendants, the court directs the defendants to
respond to the request for injunctive relief. 	The court takes
the request for injunctive relief under advisement pending
receipt of the defendants’ response.
In his filings, Mr. El also asks the court to investigate
the legality of the mail operations at FCI Berlin. 	The court
does not investigate matters on behalf of litigants, and the
district judge should deny that request.
Motions
Mr. El has filed a motion for summary judgment (Doc. No.
13) and a motion seeking entry of default and/or default
judgment (Doc. No. 22) against the defendants. 	Although Mr. El
alleges that he has effected service on Warden Hazlewood in this
action, because Mr. El is a prisoner filing a civil action
against government officials, the defendants are not required to
appear or answer the complaint until the court conducts
preliminary review pursuant to 28 U.S.C. § 1915A(a), and directs
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service on those defendants. 	See Askew v. Holder, No. CIV.A.
12-0221, 2013 U.S. Dist. LEXIS 21601, *1-*2, 2013 WL 595893, at
*1 (D.D.C. Feb. 15, 2013) (collecting cases). 	Cf. 42 U.S.C.
§1997e(g)(1) (defendants may waive right to reply to complaint
without waiver being considered an admission). 	The court has
not yet directed that any defendant be served with the
complaint, or that any defendant file an answer in this matter.
In an Order issued simultaneously with this R&R, the court
directs that the complaint be served. 	However, because service
of this matter was not authorized until this date, the
defendants have not yet accrued the obligation to respond to the
complaint, or to any motion filed in this action. 	Accordingly,
default and default judgment cannot be entered at this time.
The district judge, therefore, should deny the motion for
summary judgment (Doc. No. 13) and the motion for default (Doc.
No. 22), without prejudice to Mr. El’s ability to seek such
relief, as appropriate, at a later stage in this case.
Conclusion
For the foregoing reasons, the court recommends that the
district judge:
• 	Dismiss Claims 1(a)(ii)-(iii), 1(b)(ii)-(iii), 1(c)(ii)-
(iii), 1(d)(ii)-(iii), 1(e)(i)-(iii), 1(f)(i)-(iii), and
Claim 9 for failure to state a claim upon which relief
might be granted;
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• 	Dismiss Claims 2-8 without prejudice to Mr. El’s ability
to assert those claims in new actions;
• 	Dismiss all of the defendants in this action other than
FCI Berlin Mailroom Officer Melainson, and FCI Berlin COs
Flynn, Farren, and Burnside from this action, in their
individual and official capacities, without prejudice to
Mr. El’s ability to move to amend his complaint to
identify and add defendants to the claims served this
date;
• 	Deny Mr. El’s request for a court-conducted investigation
into FCI Berlin’s mail operations;
• 	Deny Mr. El’s motion for summary judgment (Doc. No. 13);
and
• 	Deny Mr. El’s motion for default (Doc. No. 22).
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 7, 2020
cc: 	Jaame Amun Re El, pro se
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