Widi, Jr. v. Federal Bureau of Prisons et al

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
David J. Widi, Jr.,
Plaintiff
v. 	Case No. 14-cv-160-SM
Opinion No. 2016 DNH 144
Federal Bureau of Prisons, et al.,
Defendants
O R D E R
Pro se plaintiff, David Widi, Jr., is a federal prisoner who
was formerly incarcerated at the Federal Correctional Institution
(“FCI”) in Ray Brook, New York, and more recently at FCI Berlin,
in Berlin, New Hampshire. 	He is currently incarcerated at FCI
Pollock, in Pollock, Louisiana. 	Widi brings this action seeking
declaratory and injunctive relief, as well as monetary damages,
for numerous injuries and slights he claims to have suffered
while he was incarcerated at both FCI Ray Brook and FCI Berlin.
Widi’s Second Amended Complaint (document no. 105) spans
nearly ninety pages, includes more than 480 numbered paragraphs,
and advances a panoply of constitutional, statutory, and common
law claims against more than 80 defendants. 	Pending before the
court is the Magistrate Judge’s Report and Recommendation, in
which she has conducted a preliminary review of Widi’s Second
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Amended Complaint, attempted to bring some order and organization
to Widi’s pleading, and sought to decipher the precise nature
(and viability) of Widi’s claims. 	Many of the nineteen “counts”
in Widi’s second amended complaint advance several distinct legal
claims. 	Generally speaking, the Magistrate Judge has, where
possible, broken down each of those counts into four constituent
parts, with lettered sections describing the legal nature of the
claim advanced. 	That is, section (A) of those counts are brought
as Biven actions; section (B) are claims under the FTCA; section
(C) are claims pursuant to 42 U.S.C. § 1983; and section (D) are
state common law claims. 	Perhaps not surprisingly, several of
Widi’s claims have numerous subsections as well - hence, the
somewhat complex numbering system employed by the Magistrate
Judge.
After due consideration of Widi’s objection (document no.
141), as well as his reply memorandum (document no. 147), I
herewith approve the Report and Recommendation of Magistrate
Judge Andrea K. Johnstone dated May 2, 2016 (document no. 119),
with one minor exception, as noted below. 	Accordingly:
1. 	Widi’s Second Amended Complaint (document no.
105) shall be the operative complaint in this
proceeding. 	All claims advanced in Widi’s original
Complaint (document no. 1) and/or his First Amended
Complaint (document no. 21) are dismissed to the extent
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they were not repeated in the second amended complaint
as counts 1 through 19.
2. 	Bivens claims. 	The Bivens claims in the
Second Amended Complaint and identified in the Report
and Recommendation as Claims 1(A)(vii) and 1(A)(x)-(xi)
are dismissed for failure to state a claim.
The Bivens claims identified in the Report
and Recommendation as Claim 8(A), as well as that
portion of Claim 7(A) relating to the alleged
deprivation of a mattress, are dismissed, without
prejudice, for Widi’s failure to comply with the PLRA’s
exhaustion requirement.
3. 	FTCA claims. 	Widi’s claims under the Federal
Tort Claims Act (“FTCA”) - that is, Claims
1(B)(vii)(a)-(b) and subpart (B) of claims 2-8 - are
dismissed, without prejudice, for lack of jurisdiction
under the FTCA.1
4. 	Common Law and Section 1983 Claims. 	All
claims advanced in the Second Amended Complaint
pursuant to state common law and 42 U.S.C. § 1983 are
dismissed for failure to state a claim. 	As identified
by the Magistrate Judge, those are subparts (C) and (D)
of claims 1-17, as well as Claim 19 in its entirety.
5. 	Individual Defendants. 	All claims asserted
against Public Health Service Officers Kans Booz Lewis
and Lirissa McCoy are dismissed for failure to state a
claim.
All claims against the following defendants
are also dismissed: 	FCI Berlin defendants Kathy
Bilodeau, R. Brown, B. Cooper, Kristen Croteau, FNU
Early, Angelo Giamusso, FNU Hawes, Joshua Hulume, W.
Knight, FNU Kuznecow, FNU Napier, S. Paritsky, Kevin
Ramsay, and Christopher Thiel.
1 	In the body of the Report and Recommendation, the Magistrate
Judge recommends dismissal of, inter alia, Claims 1(B)(vii)(a)-
(b). 	Id. at 20 and 22. 	In her conclusion, however, the
Magistrate Judge references Claim 1(B)(viii)(a)-(b). 	Absent
argument to the contrary by any of the parties, the court has
assumed that the latter is simply a typographical error.
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“FNU Barger” is hereby dismissed from the
case, as Widi appears to have substituted defendant
Mark Argir for him. 	The unnamed FCI Berlin corrections
officers, listed in the docket as “Does 1-22,” are
hereby dismissed from the case, as Widi has substituted
named defendants for the parties previously listed as
“Does 1-22.” 	A new set of nine unnamed FCI Berlin
corrections officers (identified in the Second Amended
Complaint as “Does 1-9”) shall be added to the case.
6. 	The Bivens claims and the related FTCA claims
against the so-called Ray Brook defendants (Donald
Hudson, David Salamy, Jeffrey Gluc, Yancey Matteau,
Michell Gonyea, and the United States) and identified
by the Magistrate Judge as Claims 1(A)(i) and 1(B)(i)
are hereby transferred to the United States District
Court for the Northern District of New York.
Finally, as noted by the government in its response (document no.
138), defendants have not moved to dismiss that portion of Claim
7(A) of the Second Amended Complaint relating to the deliberate
indifference claims arising from the alleged failure to diagnose
and/or adequately treat Widi’s hernia; they have only sought, and
hereby obtained, dismissal of Widi’s deliberate indifference
claims against defendants Knight, Teale, Hulume, Malcolm, Dzubak,
Kuzencow, and Tobias arising from Widi’s alleged deprivation of a
mattress. 	Accordingly, Widi’s deliberate indifference claim
relating to the diagnosis and treatment of his hernia, as set
forth in Claim 7(A) of the Second Amended Complaint, remains and
the court does not accept the portion of the Report and
Recommendation recommending dismissal of that claim. 	In all
other respects, however, the court adopts and approves the
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Magistrate Judge’s Report and Recommendation dated May 2, 2016
(document no. 119).
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
August 19, 2016
cc: 	David J. Widi, Jr., pro se
T. David Plourde, Esq.
Terry L. Ollila, Esq.
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