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

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David J. Widi, Jr.
v. Civil No. 14-cv-160-SM
Federal Bureau of Prisons et al.1
REPORT AND RECOMMENDATION
Plaintiff David Widi’s “Second Amended Complaint” (doc. no.
105) is before the court and subject to preliminary review,
1The defendants listed in the Second Amended Complaint (doc.
no. 105) are the United States; the Federal Bureau of Prisons
(“BOP”); BOP Northeast Regional Director J.L. Norwood; BOP
Northeast Regional Clinical Director McDaniel Holloway; former
Federal Correctional Institution (“FCI”) Ray Brook Warden Donald
Hudson; FCI Ray Brook Unit Manager David Salamy; FCI Ray Brook
Case Managers Jeffrey Gluc and Yancey Matteau; FCI Ray Brook
Case Management Coordinator Michelle Gonyea; and the following
current or former FCI Berlin employees: Warden Esker Tatum;
Assoc. Wardens B. Birkholtz and FNU (first name unknown) McGurn;
Capt. A. Galletta; Lts. A. Curren, John Domitrovich, N. Hayden,
J. Hess, and Derek Myers; Case Mgt. Coordinator Dan Sullivan;
Case Manager FNU LaBrenz; Unit Manager Wanda Mullins; Health
Servs. Administrator Lirissia McCoy; Kanz Booz Lewis, P.A.;
Kathy Bilodeau, R.N., Kristen Croteau, Christine Larin, R.N.,
and Brad Malcolm, R.N.; and Corrections Officers Mark Argir,
Jerrod Grimes, Brian Smith, Jason Kelsey, Shawn Felix, Scott
Tawes, Richard Smith, M. Dzubak, Andre Bouchard, Patrick
Deveney, Emily Crimaldi, Charles Hubbard, Christopher Tobias,
Derek Waughan, Ryan Donahue, Stephen McConnell, W. Knight,
Christopher Thiel, Joshua Hulume, FNU Kuznecow, Richard Cone,
Shane Smith, Travis Taylor, Wesley Shea, Angelo Giamusso, Kevin
Ramsay, Jared Wydra, S. Bruce, FNU Tempke, N. Flynn, T.
Folnsbee, M. Lock, J. Purselley III, B. Beegle, J. Buescher, E.
Hernandez, S. Paritsky, FNU Napier, R. Brown, FNU Early, FNU
Hawes, B. Cooper, J. Lee, J. Chappell, E. Quinones, J. Gambone,
and nine other FCI Berlin corrections officers, identified as
“Does 1-9.”
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pursuant to 28 U.S.C. § 1915A and LR 4.3(d)(1). Pursuant to 28
U.S.C. § 1915A(b), the court may dismiss claims asserted in an
inmate’s pleading if the court lacks subject matter
jurisdiction, a defendant is immune from the relief sought, the
complaint fails to state a claim, or the action is frivolous or
malicious. The standard applied in determining if the pleading
states a claim is in the June 24, 2014, Report and
Recommendation (“R&R”) (doc. no. 4), approved on July 23, 2014.
See Order (doc. no. 9).
Background
Widi is a federal prisoner who was previously incarcerated
at the Federal Correctional Institution (“FCI”) in Berlin, New
Hampshire, and at FCI Ray Brook in New York. Widi filed this
action in the New Hampshire Superior Court in Coös County in
early February 2014, and the federal defendants removed the case
to this court in April 2014. In a June 24, 2014, R&R (doc. no.
4), this magistrate judge recommended, among other things, that
the district judge dismiss all claims asserted in the original
complaint, except certain First Amendment retaliation claims
asserted against individual federal employees under Bivens v.
Six Unknown Fed. Narc. Agents, 403 U.S. 388 (1971). The
district judge approved that R&R. See July 23, 2014, Order
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(doc. no. 9).
Plaintiff filed the (first) Amended Complaint, adding new
claims under Bivens and the Federal Tort Claims Act (“FTCA”), on
October 9, 2014. Defendants filed motions to dismiss certain
claims in that pleading. See Mots. Dismiss (doc. nos. 68, 70,
81). This court denied each of those motions, without
prejudice, without ruling on their merits, after plaintiff, in
lieu of objecting, filed the Second Amended Complaint (doc. no.
105). See Nov. 20, 2015, Order (doc. no. 106).
Claims
The court uses a numbering system for the claims in the
Second Amended Complaint (“SAC”), tracking Widi’s claim numbers
in that pleading, and uses letters and Roman numerals in this
R&R to identify subparts of those claims. The claims asserted
in the SAC are summarized below:
1. Defendants engaged in adverse acts against Widi in
retaliation for Widi’s speech or conduct, protected under
the First and Fourteenth Amendments, giving rise to their
liability under (A) Bivens; (B) the FTCA; (C) state common
law; and (D) 42 U.S.C. § 1983, in that:
i. In retaliation for Widi’s filing grievances at
FCI Ray Brook, FCI Ray Brook defendants Gluc, Matteau,
Salamy, Gonyea, and Hudson, in January 2014:
a. miscalculated Widi’s custody score to keep
him at a medium security level, and
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b. effected Widi’s transfer to FCI Berlin;
ii. In retaliation for Widi’s filing grievances at
FCI Ray Brook, FCI Berlin defendant Mullens refused to
correct Widi’s custody level calculation, in order to
keep Widi classified as a medium security inmate;
iii. In retaliation for Widi’s filing of grievances at
FCI Ray Brook, FCI Berlin supervisors Tatum and
Sullivan approved and authorized Mullens’s actions,
knowing that her actions were unconstitutional;
iv. In retaliation for Widi’s filing of grievances at
FCI Berlin, FCI Berlin defendant Mullens refused to
correct Widi’s custody level calculation, in order to
keep Widi classified as a medium security inmate;
v. In retaliation for Widi’s filing of grievances at
FCI Berlin, FCI Berlin supervisors Tatum and Sullivan
approved and authorized Mullens’s actions, knowing
that her actions were unconstitutional; and
vi. In retaliation for Widi’s filing of this lawsuit
on February 11, 2014, Mullens assigned Widi a new job,
and then did not provide him with notice of the
assignment, resulting in Widi’s transfer to the
Special Housing Unit (“SHU”) on February 13, 2014, and
in disciplinary proceedings against him because of his
failure to report to his new job station.
vii. Defendants Hayden and Tobias denied Widi access
to legal materials, and/or threatened to do so, in
that:
a. in retaliation for Widi’s complaints to
prison officials about being deprived of a
mattress, Hayden took away Widi’s law library
printouts on April 2, 2014;
b. Hayden and Tobias, on April 10, 2014,
threatened to take away all of Widi’s legal
materials while Widi attended an appointment with
a surgeon, to retaliate against Widi for, and to
discourage him from, seeking medical attention.
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viii. Defendants initiated a series of false incident
reports, to retaliate against Widi for complaining
about prison conditions to prison officials, in 2014,
specifically:
a. Nos. 2551906 (Feb. 22), 2552067 (Feb. 23),
and 2552492 (Feb. 24), each of which involved a
period of disciplinary segregation;
b. Nos. 2553636 (Feb. 27), 25566527 (April 2),
2570923 (April 13), 2571464 (April 14), 2572035
(April 15), 2572041 (April 16), and 2574751 (Apr.
23), some of which were expunged;
c. Nos. 2607053, 2607186 and 2607183 (July 18);
2607414, 2607295, and 2607416 (July 19), some of
which were expunged;
d. Nos. 2619226, 22619449, 2619454, and 2619452
(Aug. 20), some of which were expunged; and
e. Nos. 2621949 (Aug. 26); 2625296 (Sept. 4);
2631302 (Sept. 21/23); 2631304 (Sept. 24);
2633713 (Sept. 28); 2634018-20 and 2634284 (Sept.
29); 2634291 and 2634470 (Sept. 30); and 2648672
(Nov. 7), some of which were expunged.
ix. Defendants, with the approval of Galletta,
McGurn, Birkholtz, Tatum, and Norwood, in 2014,
subjected Widi to excessive force and misapplied
restraints:
a. On February 21 and February 22, in
retaliation for Widi’s refusal of a medical
assessment;
b. On February 27, in retaliation for Widi’s
refusal of an assignment to a hostile cell
environment, and refusal of a medical assessment,
and on April 24, for Widi’s refusal of an
assignment to a hostile cell environment;
c. On July 18-19, in retaliation for Widi’s
refusal of an assignment to a hostile cell,
refusal of a medical assessment, and/or his
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complaints about prison conditions;
d. On August 20, in retaliation for Widi’s
refusal of an assignment to a hostile cell,
refusal of a medical assessment, and/or his
complaints about prison conditions; and
e. On September 22, in retaliation for Widi’s
refusal of an assignment to a hostile cell,
refusal of a medical assessment, and/or his
complaints about prison conditions.
x. On September 29 and 30, 2014, defendants denied
Widi his food trays to retaliate against Widi for
complaining about the deprivation of his mattress.
xi. On nine occasions in August and September 2014,
defendants denied Widi one hour of recreation time to
retaliate against him for exercising his federal
rights.
Claims 1(A)(viii)(c)-(e), 1(A)(ix)(c)-(e), and 1(A)(x)-(xi) are
new Bivens claims, not previously asserted by Widi in this
lawsuit, as are all of the FTCA claims based on the allegations
set forth in Claim 1 (identified herein as subpart (B) of Claim
1). The remaining parts of Claim 1 were previously pleaded by
Widi in the original complaint and/or in the First Amended
Complaint.
Claims 2-6, 8-11, and 13-17 assert that defendants are
liable under (A) Bivens, (B) the FTCA, (C) state common law, and
(D) 42 U.S.C. § 1983 for excessive force and/or the
misapplication of restraints, which Widi asserts caused him
injuries. Widi asserts that defendants used excessive force
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against him and misapplied handcuffs or other restraints,
maliciously and sadistically, causing him harm in 2014, on
February 21 (Claim 2), February 22 (Claims 3-4), February 27
(Claims 5-6), April 24 (Claim 8), July 18-19 (Claims 9-11, 13),
August 20 (Claims 14-16), and September 22 (Claim 17). Claims
2-6 and 8 were asserted as Bivens and FTCA claims in the First
Amended Complaint. Claims 9-11 and 13-17, asserted as both
Bivens and FTCA claims, are asserted for the first time in the
Second Amended Complaint.
SAC Claims 7 and 12 assert claims under (A) Bivens, (B) the
FTCA, (C) state common law, and (D) 42 U.S.C. § 1983, as to
defendants’ deliberate indifference to Widi’s ventral hernia,
asthma, handcuff abrasions, and pain, and his unmet requests for
a mattress, pain medication, laparoscopic surgery, a prescribed
post-surgical diet, and ointment for abrasions. The supervisory
defendants named by Widi in connection with those incidents are
alleged to be liable for failing to train and supervise their
subordinates who were involved in the incidents, and/or for
approving and authorizing their conduct. Claim 7 was asserted
in the First Amended Complaint as a claim under both Bivens and
the FTCA. Claim 12, relating to incidents occurring on or after
July 18, 2014, is a new claim.
Claim 18 is asserted for the first time in the SAC. Claim
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18 arises under the Freedom of Information Act (“FOIA”). Widi
alleges that the Bureau of Prisons (“BOP”) has not timely and
adequately responded to Widi’s request for certain documents
relating to the matters at issue in this case.
Claim 19 asserts a new tort claim, asserted under state
law. Widi alleges that defendants Brown and Dzubak
intentionally or negligently lost Widi’s property, which Widi
values at $756.40. Widi further asserts that the BOP offered to
settle that claim for a lesser sum, and that Widi accepted the
offer, but has not yet been paid.
Discussion
I. Prior Pleadings
Widi’s 85-page, 500-paragraph SAC purports to incorporate
by reference Widi’s prior pleadings, without limitation. LR
15.1(b) precludes parties from incorporating prior pleadings by
reference in amended pleadings, except by leave of court. The
court has not granted Widi such leave. Furthermore, the claims
asserted in those prior pleadings that have not been repleaded
in the SAC were previously dismissed for failure to state a
claim, and the records suggests no basis for reconsidering those
dismissals. See June 24, 2014, R&R (doc. no. 4), approved by
July 23, 2014, Order (doc. no. 9); see also Dec. 8, 2014, R&R
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(doc. no. 31), approved by Feb. 20, 2015, Order (doc. no. 62).
Any claims Widi seeks to incorporate into the Second Amended
Complaint solely by reference should be dismissed.
II. Section 1983 (SAC Claims 1-17, Subpart (D))
Widi asserts claims against federal agents under 42 U.S.C.
§ 1983. This court previously declined to serve such claims, on
the ground that all defendants are federal agents, and § 1983
provides a cause of action for state actors’ constitutional
violations. Widi’s § 1983 claims should be dismissed.
III. State Law Claims (SAC Claims 1-17, Subpart (C), and 19)
The FTCA “provides the exclusive remedy to compensate for a
federal employee’s tortious acts committed within his or her
scope of employment.” Roman v. Townsend, 224 F.3d 24, 27 (1st
Cir. 2000); see also 28 U.S.C. § 2679(b)(1). State law tort
claims are not excepted from the scope of federal employee
immunity granted by the FTCA. All of Widi’s tort claims in this
case arise out of conduct undertaken by individuals in their
capacity as federal employees. Therefore, the district judge
should dismiss Widi’s state law claims, specifically, Claims 1-
17, subpart (C), to the extent that those claims rely on a state
law for the cause of action, as well as Claim 19, which Widi
pleaded as a state law tort claim for lost property.
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IV. Lewis and McCoy
Widi has asserted claims against Public Health Service
(“PHS”) Officers Kanz Booz Lewis and Lirissia McCoy in their
individual capacities. Under 42 U.S.C. § 233(a), claims for
personal injury by commissioned officers of the PHS are limited
to the remedies available under the FTCA, 28 U.S.C. §§ 1346(b),
2672. The immunity provided by § 233(a) precludes Bivens
actions against individual officers or employees for harms
arising out of the exercise of their PHS functions. Hui v.
Castaneda, 559 U.S. 799, 812-813 (2010). With respect to Widi’s
allegations, McCoy and Lewis were acting within their capacity
as PHS officers. See Second Am. Compl. ¶¶ 53-54; see also Lewis
Decl. (doc. no. 81-2); Personnel Order (doc. no. 81-3); McCoy
Decl. (doc. no. 70-3); Personnel Order (doc. no. 70-4). All
claims against McCoy and Lewis should be dismissed, and those
defendants should be dropped from this case.
V. Personal Jurisdiction over Ray Brook Defendants
A. Background
Defendants have twice moved to dismiss Widi’s Bivens claims
against the Ray Brook defendants (Gluc, Matteau, Gonyea, Hudson,
and Salamy), on the basis that this court lacks personal
jurisdiction over those defendants, as they reside in New York.
See Mots. Dismiss (doc. nos. 20 and 68). Plaintiff objected to
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dismissal of the claims against those defendants (doc. no. 23).
The court denied those motions without ruling on their merits,
because amended pleadings filed by plaintiff rendered those
motions moot. In the interest of judicial economy, and to
ensure plaintiff could litigate claims against the Ray Brook
defendants in a forum that has jurisdiction over them, this
court considers the personal jurisdiction issue at this time.
B. Standard
When personal jurisdiction is contested, the plaintiff
bears the burden of establishing that the court has jurisdiction
over the defendant. Rodriguez v. Fullerton Tires Corp., 115
F.3d 81, 83 (1st Cir. 1997). In cases in which an evidentiary
hearing is not held, “‘a plaintiff need only to make a prima
facie showing that defendants are subject to personal
jurisdiction.’” Presby Patent Tr. v. Infiltrator Sys., Inc.,
No. 14-cv-542-JL, 2015 DNH 111, 2015 U.S. Dist. LEXIS 71562 at
*4, 2015 WL 3506517 at *2 (D.N.H. June 3, 2015) (citation
omitted). “In making a prima facie showing of jurisdiction, a
plaintiff need not, and indeed may not, rely only on the
allegations in the complaint.” Sturm, Ruger & Co. v. Armscor
Precision Int’l, Inc., No. 14-cv-194-SM, 2015 DNH 148, 2015 U.S.
Dist. LEXIS 98324 at *2, 2015 WL 4563005 at *1 (D.N.H. July 28,
2015). “Rather, he or she must ‘adduce evidence of specific
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facts’ that support jurisdiction.” Dagesse v. Plant Hotel N.V.,
113 F. Supp. 2d 211, 215 (D.N.H. 2000) (citation omitted). In
reviewing the facts, the court takes the plaintiff’s evidentiary
proffers as true and construes them in the light most favorable
to the plaintiff’s claim, and will also consider uncontradicted
facts proffered by the defendant. C.W. Downer & Co. v.
Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir. 2014).
This court’s inquiry into whether there is personal
jurisdiction over the out-of-state defendants depends on whether
the due process requirements of the United States Constitution
are satisfied. GE Mobile Water, Inc. v. Red Desert Reclamation,
LLC, No. 13-cv-357-PB, 2014 DNH 49, 2014 U.S. Dist. LEXIS 29565
at *5, 2014 WL 900715 at *2 (D.N.H. Mar. 7, 2014); see also N.
Laminate Sales, Inc. v. Davis, 403 F.3d 14, 24 (1st Cir. 2005);
Campbell v. CGM, LLC, No. 15-CV-88-JD, 2015 U.S. Dist. LEXIS
94020 at *8, 2015 WL 4424018 at *3 (D.N.H. July 20, 2015).
Generally, a defendant must have “purposefully avail[ed] itself
of the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its laws”
such that the defendant “should reasonably anticipate being
haled into court there.” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 474-75 (1985) (citations and quotation marks omitted).
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C. General and Specific Jurisdiction
Personal jurisdiction may be general or specific. United
Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp.,
960 F.2d 1080, 1088 (1st Cir. 1992). Plaintiff here contends
that both types of personal jurisdiction exist with respect to
the Ray Brook defendants.
As to general jurisdiction, plaintiff argues, without
offering evidence, that in their status as BOP employees, the
Ray Brook defendants have contact with FCI Berlin staff. The
declarations of the Ray Brook defendants in the record here
(doc. nos. 20-18 to 20-22), however, state that none of these
defendants has had any personal or business interest in or
contacts with New Hampshire. Plaintiff offers no evidence to
dispute those specific averments; his arguments to the contrary
are not supported by any evidentiary proffer. Plaintiff has
failed to make the requisite showing that defendants’ contacts
with FCI Berlin have been sufficiently continuous and systematic
to give rise to general personal jurisdiction. See Hill v.
Pugh, 75 F. App’x 715, 719 (10th Cir. 2003); Alba v. Randle, No.
5:10-cv-49(DCB)(RHW), 2011 U.S. Dist. LEXIS 112683 at *5, 2011
WL 4565752 at *2 (S.D. Miss. Sep. 29, 2011); Doe v. Wooten, No.
1:07-CV-2764-RWS, 2009 U.S. Dist. LEXIS 27445 at *7, 2009 WL
900994 at *4 (N.D. Ga. Mar. 30, 2009) (Georgia lacked personal
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jurisdiction over BOP administrator who routinely designated
inmates to BOP facilities in Georgia and routinely communicated
with those facilities to effect transfers), aff’d in pertinent
part, 376 F. App’x 883, 884 (11th Cir. 2010) (BOP
administrator’s “contacts with Georgia do not satisfy the
minimum contacts analysis necessary for an exercise of personal
jurisdiction to comport with due process”).
“Specific jurisdiction ‘may only be relied upon where the
cause of action arises directly out of, or relates to, the
defendant’s forum-based contacts.’” Bunker v. Midstate Mut.
Ins. Co., No. 14-cv-274-PB, 2014 DNH 167, 2014 U.S. Dist. LEXIS
109729 at *5, 2014 WL 3891296 at *2 (D.N.H. Aug. 7, 2014)
(citation omitted). Three factors guide the analysis of
specific jurisdiction – relatedness, purposeful availment, and
reasonableness. Id. The relatedness inquiry requires that the
underlying claim “arise out of” or be “related to” the
activities within the forum state. Id. (citation and quotation
marks omitted). Analyzing purposeful availment is necessary “to
ensure that the assertion of personal jurisdiction over a
defendant is not based on merely random, isolated, or fortuitous
contacts with the forum state.” Id., 2014 U.S. Dist. LEXIS at
*7, 2014 WL 108279 at *3 (citations and quotation marks
omitted). The “court may only exercise specific jurisdiction
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over a defendant if it is reasonable to do so.” Id., 2014 U.S.
Dist. LEXIS at *12, 2014 WL 108279 at *4.
In response to defendants’ motion to dismiss the original
complaint against the Ray Brook defendants, Widi filed a
declaration, indicating that all of the allegedly retaliatory
conduct undertaken by the Ray Brook defendants occurred at FCI
Ray Brook, in New York. Additionally, Widi asserts, Widi filed
the grievances that he alleges caused the New York defendants to
engage in First Amendment retaliation, in New York.
The only connection to New Hampshire described by Widi in
his declaration is Widi’s statement that Ray Brook defendants
Gluc and Matteau said on January 9, 2014, that Widi needed to
pack up because he was being transferred to FCI Berlin. The
fact that defendants told Widi where he was going, however, does
not show that they purposefully availed themselves of the
privilege of conducting any business in New Hampshire. Where
the essence of Claim 1(A)(i) is that Widi’s transfer to a medium
security facility, and the manipulation of his custody score,
were adverse acts taken in retaliation for Widi’s grievances at
FCI Ray Brook, Widi has failed to make the requisite prima facie
showing to support a finding that those defendants are subject
to the personal jurisdiction of this court. In short, it is not
reasonable for the court to make those defendants answer in this
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case for actions they undertook as federal employees in New
York. Accordingly, the FCI Ray Brook defendants should be
dropped from this case, for lack of personal jurisdiction.
VI. Severance and Transfer (Claims 1(A)(i) and 1(B)(i))
At an earlier stage of this case, Widi requested that his
claims against the FCI Ray Brook defendants be severed and
transferred to an appropriate New York forum, in lieu of
dismissal, if the court were to find that it lacked personal
jurisdiction over those defendants. See Obj. (doc. no. 23). In
the SAC, Widi pleaded his claims against the five Ray Brook
defendants as part of an omnibus pleading asserting dozens of
separate claims and subclaims against a multitude of federal
defendants. A transfer of the claims involving the Ray Brook
defendants can be effected at this time only if the court severs
those claims pursuant to Fed. R. Civ. P. 21, opens a new case
against those defendants, and transfers that new action to a
different court.
A transfer of all claims involving the Ray Brook defendants
is appropriate under the statutes concerning transfers to cure
improper venue, 28 U.S.C. § 1406(a), and transfers for the
convenience of parties and witnesses, in the interest of
justice, pursuant to 28 U.S.C. § 1404(a). “In cases involving
multiple claims and defendants, the plaintiff bears the burden
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of demonstrating that venue is proper with respect to each claim
and each defendant.” Get In Shape Franchise, Inc. v. TFL
Fishers, LLC, No. CV 15-12997-PBS, 2016 U.S. Dist. LEXIS 30132
at *33-*34, 2016 WL 951107 at *12 (D. Mass. Mar. 9, 2016). For
reasons stated above with respect to the lack of personal
jurisdiction over the Ray Brook defendants, venue for Claim
1(A)(i) is not proper here. As the Ray Brook defendants reside
in New York, and the events giving rise to Claims 1(A)(i) and
1(B)(i) occurred in the Northern District of New York, where FCI
Ray Brook is located, venue in that court is proper over both
the related Bivens and FTCA claims. See 28 U.S.C. §§ 1391,
1402(b).
Although there may not be an immediate need for a transfer
of the Bivens claims in lieu of dismissal to avoid a statute of
limitation problem with respect to Claim 1(A)(i), cf. Chin v.
Bowen, 833 F.2d 21, 24 (2d Cir. 1987) (statute of limitations on
Bivens claims in New York is three years), the statute of
limitations on the related FTCA claims may be shorter, and
severance and a transfer of both types of claims is in the
interest of justice. A transfer, in lieu of dismissal and
repleading, would expedite the disposition of a Bivens claim
that has been pending since February 2014. Start-up costs and
delays associated with refiling would be avoided. Individual
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defendants who live in New York would not be unfairly
prejudiced, as they would no longer be required to litigate this
matter out of state, and a transfer would be convenient to any
of their coworkers or FCI Ray Brook inmates who might be
witnesses. While severance and a transfer of some SAC claims to
a New York court could cause Widi to litigate cases in New York
and New Hampshire at once, that result could follow even if the
Bivens claims were severed and dismissed, as Widi could replead
his Bivens claims in New York. Widi no longer resides in either
district, as he is currently incarcerated in Louisiana.
In the interest of justice and for the convenience of the
parties and witnesses, in lieu of dismissing the Bivens claims
identified here as Claim 1(A)(i), this court should sever those
claims and the related FTCA claims identified here as Claim
1(B)(i) from this case, open a new case against defendants
Donald Hudson, David Salamy, Jeffrey Gluc, Yancey Matteau, and
Michelle Gonyea, and the United States, and then transfer that
matter to the United States District Court for the Northern
District of New York, in accordance with the procedures set
forth in this R&R’s Conclusion.
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VII. Retaliation Claims
A. Standard
To state a claim for retaliation for the exercise of First
Amendment rights, an inmate must allege: (1) that the conduct
which led to the retaliation was protected by the First
Amendment; (2) that he suffered adverse action at the hands of
the prison officials; and (3) that there was a causal link
between the exercise of his First Amendment rights and the
adverse action taken. See Hannon v. Beard, 645 F.3d 45, 48 (1st
Cir. 2011). De minimis reactions to protected speech are not
actionable. See Morris v. Powell, 449 F.3d 682, 685-86 (5th
Cir. 2006). An adverse act taken in response to protected
conduct is not de minimis, however, if it would deter an
individual of ordinary firmness from exercising his or her First
Amendment rights. See id.; see also Starr v. Dube, 334 F. App’x
341, 342-43 (1st Cir. 2009) (false disciplinary charge is de
minimis where inmate had non-futile opportunity to defend
himself in disciplinary proceedings, and disciplinary report was
dismissed).
B. Claim 1(A)(vii) and (x)-(xi)
In SAC Claim 1(A)(vii), Widi has alleged that defendant
Hayden took away Widi’s law library printouts on April 2 in
retaliation for Widi’s complaints about his mattress, and that
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Hayden and Tobias told Widi on April 10 that they planned to
take away all of his legal materials while Widi was at a
surgical consultation, to discourage him from seeking medical
treatment, and/or to retaliate for his complaints about prison
conditions. Widi further asserts that he skipped the
appointment and followed up by speaking to the clinical
director, who assured Widi that he could attend a surgery
consultation without fear of retaliation. In SAC Claims
1(A)(x)-(xi), Widi alleges that defendants took away his food
trays on two days in September 2014, and denied him one hour of
recreation time on nine occasions in August/September 2014.
All of these allegedly adverse actions are de minimus, as
they would not deter an inmate of ordinary firmness from voicing
complaints about prison conditions and health care needs,
seeking medical attention for a serious medical need, or
exercising any other federal right. Accordingly, Claims
1(A)(vii) and (x)-(xi) should be dismissed.
VIII. FTCA Exhaustion (Claims 1(B)(vii)(a)&(b), 2-8 subpt. (B))
The limited waiver of sovereign immunity under the FTCA
only applies to those claims that were properly presented to the
appropriate agency for an administrative remedy. See 28 U.S.C.
§ 2675(a). Although the Supreme Court has held that the FTCA
statutes of limitations are not jurisdictional, the Court has
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not ruled on whether the exhaustion requirements are
jurisdictional. See Pérez Batres v. Lynch, 796 F.3d 157, 160
n.4 (1st Cir. 2015) (United States v. Kwai Fun Wong, 135 S. Ct.
1625, 1632-33 (2015), “did not involve exhaustion”). The
longstanding rule in this Circuit is that, to invoke the subject
matter jurisdiction of this court over FTCA claims, a plaintiff
must demonstrate that he or she exhausted administrative
remedies before filing FTCA claims against the United States.
See 28 U.S.C. § 2675(a); see also Donahue v. United States, 660
F.3d 523, 524 (1st Cir. 2011); Skwira v. United States, 344 F.3d
64, 71 (1st Cir. 2003); Roman, 224 F.3d at 27. The court may
not allow a lawsuit asserting FTCA claims to languish on the
docket, while a party exhausts his or her administrative
remedies. Vélez-Díaz v. United States, 507 F.3d 717, 717 (1st
Cir. 2007). The district court must therefore dismiss an FTCA
claim filed before the plaintiff complied with the FTCA
exhaustion requirements, even if the plaintiff amends the
complaint after completely exhausting his remedies, as “‘[t]he
filing of an amended complaint does not cure the defect’ of
initiating suit prior to a final decision in the administrative
remedy process.” Patterson v. Potope, No. 4:11-cv-497, 2013
U.S. Dist. LEXIS 46994 at *85, 2013 WL 1314050 at *30 (M.D. Pa.
Mar. 28, 2013) (citation omitted).
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Defendants moved to dismiss and/or sought summary judgment
as to the FTCA claims in the First Amended Complaint, on the
ground that Widi had not exhausted his administrative remedies
before he filed those FTCA claims. Defendants demonstrated that
Widi named the United States as a defendant to those claims
before he had exhausted his FTCA administrative remedies with
respect to uses of force on February 21 and 22 and April 24,
2014; the uses of force that caused or contributed to his hernia
in February 2014; the removal of his mattress in March/April
2014; and plaintiff’s receipt of inadequate medical care before
and after his hernia repair. See Barksdale Decl. (doc. no. 70-
13), ¶¶ 6-9 (regarding BOP Tort Claim Nos. TRT-NER-2014-03765,
TRT-NER-2014-04278, TRT-NER-2015-01210). Widi had an
opportunity to object to that motion, and to provide this court
with evidence showing that he had exhausted his administrative
remedies before filing the claims at issue here. Widi did not
take that opportunity. With respect to Subpart (B) of Claims 2-
8 and Claim 1(B)(vii)(a)-(b), the undisputed record shows that
Widi did not exhaust his FTCA remedies before he asserted the
same claims against the United States in the First Amended
Complaint. Accordingly, the district judge should dismiss those
FTCA claims for lack of subject matter jurisdiction.
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IX. PLRA Exhaustion (Claims 7(A) and 8(A))
Defendants moved to dismiss and/or sought summary judgment
on Bivens claims in the First Amended Complaint, pursuant to the
Prison Litigation Reform Act, 42 U.S.C. § 1997e (“PLRA”), on the
ground that Widi had not exhausted his administrative remedies
on those claims before he filed them in this action.
Specifically, defendants argued that Widi filed the First
Amended Complaint before exhausting his administrative remedies
on the retaliation and inadequate medical care claims (Claims
1(A)(vii) and 7(A)), in which Widi alleged that, from March 1 to
March 14, 2014, and on April 2, 10, and 15-16, 2014, Widi did
not receive adequate treatment for his abdominal pain and
hernia, and officers took away a medically necessary mattress
and filed disciplinary reports on April 15 and 16, in
retaliation for Widi’s complaints to prison officials and
refusal to relinquish his mattress. Defendants further argued
that Widi filed the First Amended Complaint before exhausting
his administrative remedies on his retaliatory cell assignment
and excessive force claims, arising from April 23 and 24, 2014,
incidents (Claim 8(A)). This court did not rule on the merits
of the PLRA exhaustion issue as to any of those claims, as the
court denied as moot defendants’ motions, in light of Widi’s
filing of the SAC.
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Section 1997e(a) mandates that “no action shall be brought
[with respect to prison conditions under 42 U.S.C. § 1983
or any other Federal law, by a prisoner] until [the
prisoner’s] administrative remedies . . . are exhausted.”
42 U.S.C. § 1997e(a). This language clearly contemplates
exhaustion prior to the commencement of the action as an
indispensable requirement. Exhaustion subsequent to the
filing of suit will not suffice.
Medina-Claudio v. Rodríguez-Mateo, 292 F.3d 31, 36 (1st Cir.
2002) (citations omitted).
The exhaustion requirement applies to Bivens claims, see,
e.g., Acosta v. U.S. Marshals Serv., 445 F.3d 509, 514 (1st Cir.
2006), and is applicable to actions initially filed in state
court, and then removed to federal court. See, e.g., Silva v.
Warden, 150 N.H. 372, 839 A.2d 4 (2003) (applying PLRA to
prisoner’s state court claims); see also Harris v. Fla. Dep’t of
Corrs., No. 4:14-cv-575-RH-GRJ, 2015 U.S. Dist. LEXIS 49530 at
*1, 2015 WL 1729474 at *1 (N.D. Fla. Apr. 14, 2015) (§ 1997e
applied to removal action). Exhaustion must be completed before
the action is filed; a plaintiff cannot avoid the effect of the
PLRA by exhausting remedies after filing, then filing an amended
complaint to add those claims to a lawsuit. See Acosta, 445
F.3d at 514; Medina-Claudio, 292 F.3d at 36.
Allowing an inmate to simply re-plead improperly exhausted
claims would encourage circumvention of the PLRA’s
exhaustion-first rule, undermining one of the two main
purposes that exhaustion serves—to “give[] an agency an
opportunity to correct its own mistakes . . . before it is
haled into federal court and . . . discourage[] disregard
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of the agency’s procedures.” Thus, to the extent Plaintiff
included improperly exhausted claims in his original
Complaint, he cannot subsequently exhaust those claims
during the pendency of this action. Rather, this Court
must dismiss such claims without prejudice.
Brown v. Warden, No. 2:10-cv-822, 2012 U.S. Dist. LEXIS 115045
at *31, 2012 WL 3527274 at *11 (S.D. Ohio Aug. 15, 2012)
(quoting Woodford v. Ngo, 548 U.S. 81, 89 (2006)), R&R adopted
by No. 2:10-cv-822, 2012 U.S. Dist. LEXIS 128815, 2012 WL
3962817 (S.D. Ohio Sept. 11, 2012). The appropriate remedy for
failing to exhaust remedies before filing suit is thus dismissal
of unexhausted claims, without prejudice to the plaintiff’s
ability to refile them in a new lawsuit after PLRA exhaustion is
completed. See Acosta, 445 F.3d at 514; Medina-Claudio, 292
F.3d at 36.
Dismissing an action on the basis of an affirmative
defense, such as PLRA exhaustion, is permissible if the facts
alleged in the complaint, or matters susceptible of judicial
notice, conclusively establish the elements of the affirmative
defense. See Gray v. Evercore Restructuring LLC, 544 F.3d 320,
324 (1st Cir. 2008). For the Bivens claims that were pleaded in
the First Amended Complaint (“FAC”) and then simply reasserted
in the SAC as Claims 7(A) and 8(A), however, the undisputed
record here indicates that Widi did not exhaust his remedies
under the PLRA as to those claims. See Mastroberti Decl. (doc.
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no. 70-5), ¶¶ 9-12 (BOP Claim Nos. 775583-F1, 775583-R1, 775583-
A1, 775583-A2, as to FAC Claims 11-12); id. at ¶¶ 13-16 (BOP
Claim Nos. 778323-F1, 778323-R1, 778323-A1, 778323-A2, as to FAC
Claim 13). Because it is undisputed that Widi did not exhaust
his administrative remedies before pleading those Bivens claims
in this case in the first instance, and the record suggests no
basis upon which the PLRA exhaustion requirements might be
excused, the district judge should dismiss those Bivens claims
from this case, without prejudice, pursuant to the PLRA.2
X. Remaining Claims
Except as stated herein, the remaining claims in the SAC
may proceed in this case, and the SAC is deemed to be the
operative complaint in this action. The court, in an Order
issued this date, has directed service of the SAC upon new
defendants, as named in that Order, and has provided all
defendants an opportunity to file an answer or other response to
the SAC, including motions that may be filed or refiled, in
2Defendants have not moved to dismiss any of the Bivens
claims that are new in the Second Amended Complaint. The four
corners of that pleading do not show whether Widi complied with
the PLRA exhaustion requirement before he filed that pleading.
Furthermore, this court need not consider whether plaintiff
exhausted his PLRA remedies as to Claim 1(A)(vii), as that claim
is subject to dismissal for failure to state a claim, as
explained in this R&R.
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accordance with the November 20, 2015, Order (doc. no. 106).
Conclusion
For the foregoing reasons, the magistrate judge recommends
as follows:
1. The Second Amended Complaint (“SAC”) is deemed to
be the operative complaint in this action. The district
judge should dismiss any claims asserted in the original
complaint (doc. no. 1-1 and 1-2) or in the First Amended
Complaint (doc. no. 21), to the extent they are not
repleaded in the SAC, as Claims 1-19, as identified in this
R&R.
2. The district judge should dismiss all claims
against the individual defendants named in the SAC, to the
extent that they are based on 42 U.S.C. § 1983 or state
law, for failure to state a claim. Specifically, the
district judge should dismiss Claim 19 and subparts (C) and
(D) of Claims 1-17, as identified in this R&R.
3. The Bivens claims identified in this R&R as
Claims 1(A)(vii) and 1(A)(x)-(xi), should be dismissed for
failure to state a claim.
4. All claims asserted against PHS officers Kanz
Booz Lewis and Lirissia McCoy should be dismissed pursuant
to 42 U.S.C. § 233(a), for failure to state a claim upon
which relief can be granted.
5. The FTCA claims identified in this R&R as Claims
1(B)(viii)(a)-(b) and as subpart (B) of Claims 2-8 should
be dismissed without prejudice for lack of jurisdiction
under the FTCA.
6. The Bivens claims identified in this R&R as
Claims 7(A) and 8(A) should be dismissed, without prejudice
to refiling in a new action, for Widi’s failure to comply
with the PLRA exhaustion requirement before filing those
claims in this case.
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7. The district judge should sever, and then
transfer to the Northern District of New York, the Bivens
claims identified in this R&R as Claim 1(A)(i), with
respect to the FCI Ray Brook defendants, and the related
FTCA claim against the United States, Claim 1(B)(i). The
clerk’s office should open a new case naming Widi as
plaintiff and Donald Hudson, David Salamy, Jeffrey Gluc,
Yancey Matteau, Michelle Gonyea, and the United States as
defendants, using the SAC as the complaint in that case,
and also docketing in that new case this R&R; the Order
that approves this R&R; the June 24, 2014, R&R (doc. no.
4); the June 24, 2014, Order (doc. no. 5); the July 23,
2014, Order (doc. no. 9); the Dec. 8, 2014, R&R (doc. no.
31); and the Feb. 20, 2015, Order (doc. no. 62). The
clerk’s office should then transfer that new case to the
United States District Court for the Northern District of
New York, for that court’s disposition of Claims 1(A)(i)
and 1(B)(i), as identified in this R&R, in light of matters
alleged in SAC ¶¶ 10-14, 89-97, 244-50, and Widi’s request
for relief at SAC ¶(i), at p.81.
8. The following parties should be dropped from this
case, as all claims against them should be dismissed from
this action: FCI Ray Brook defendants Donald Hudson, David
Salamy, Jeffrey Gluc, Yancey Matteau, and Michelle Gonyea;
PHS officers Lirissia McCoy and Kanz Booz Lewis; and 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. “FNU
Barger” should be dropped, as defendant Mark Argir appears
to have been substituted for him. The unnamed FCI Berlin
corrections officers, listed in the docket as “Does 1-22,”
should be dropped from the case, and a new set of nine
unnamed FCI Berlin corrections officers (identified in the
SAC as “Does 1-9”) should be added, as Widi has substituted
named defendants for the parties previously listed as “Does
1-22.”
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). Failure to file objections within the
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specified time waives the right to appeal the district court’s
order. See Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15,
21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 2, 2016
cc: David J. Widi, Jr.
T. David Plourde, Esq.
Terry L. Ollila, Esq.
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