Thomas v. FCI Berlin, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Oliver Thomas
v. Civil No. 16-cv-012-SM
Federal Bureau of Prisons et al.1
REPORT AND RECOMMENDATION
Plaintiff Oliver Thomas, an inmate at the Federal
Correctional Institution, Berlin, New Hampshire (“FCI-Berlin”)
has filed a complaint (doc. no. 1) alleging violations of his
federal rights. The complaint is before the court for
preliminary review to determine, among other things, whether
Thomas has stated any claim upon which relief might be granted.
See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(1)(B).
Preliminary Review Standard
In determining whether a pro se complaint states a claim,
the court must construe the complaint liberally. See Erickson
1The defendants named in the complaint (doc. no. 1) are: the
Federal Bureau of Prisons (“BOP”); Federal Correctional
Institution, Berlin, New Hampshire (“FCI-Berlin”) Warden E. L.
Tatum; FCI-Berlin Trust Fund Supervisor D. Richmond; FCI-Berlin
Corrections Officers/Laundry Supervisors Joey Paul and M.
Vigneault.
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v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). To survive
preliminary review, the complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Background
On May 29, 2014, at 6:20 a.m., Thomas, was in the FCI-
Berlin Laundry, where he had been employed since February 14,
2013. The previous day, there had been an institutional
lockdown, and, as a result, one of the FCI-Berlin Laundry
Supervisors, Corrections Officer (“C.O.”) M. Vigneault, had done
the laundry that day. On the morning of May 29, Thomas told
Vigneault that several inmates were in the lobby complaining
about their laundry from the day before and requesting that
their laundry be redone.
Vigneault reacted in what Thomas describes as a “very
hostile and very unprofessional” manner. Doc. No. 1, at 3.
Vigneault stated that Thomas, who had never had an absence, a
negative performance review, or an incident report related to
his Laundry job, was “becoming a total ‘fuck up,’” and that he
was going to make sure that Thomas lost his job and his “Pay
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Grade One” pay.2 Id. Thomas, an African-American, asserts that
Vigneault then “began using racial and sexual [sic] charged
insults as he [h]as done in the past fifteen (15) months that
plaintiff worked for him.” Id.
Shortly after that interaction with Vigneault, Thomas was
called into the Laundry Supervisor’s office, and at that time,
FCI-Berlin C.O. Joey Paul, with Vigneault present, asked Thomas
if he had been talking about the officers’ behavior. When
Thomas stated that he had not, Paul “then instructed the
plaintiff to leave laundry, stating that he did not need any
more niggers.” Id. at 4. Thomas alleges that he was terminated
from his position at the Laundry, in part, due to Paul and
Vigneault’s racial discrimination against him, and in part, in
2“Pay Grade One” is the highest BOP pay grade for inmates:
The BOP has four pay grades for inmates assigned to jobs in
institutions under its control. The lowest level is Pay
Grade Four and the highest is Pay Grade One. There are a
very limited number of Pay Grade One positions in any given
institution, with only five percent of the inmates at any
institution being permitted to be assigned to that pay
grade.
Williams v. Fed. Bureau of Prisons & Parole Comm’n, 85 F. App’x
299, 302 (3d Cir. 2004). Thomas states that, at the time the
events relevant to this action occurred, he was the only prison
worker in the FCI-Berlin Laundry at Pay Grade One.
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retaliation for plaintiff’s statement that he intended to report
the treatment he had received from Paul and Vigneault to prison
officials.
During the fifteen months Thomas was employed in the FCI-
Berlin Laundry, he states that he was regularly subjected to
poor treatment that was racially or sexually motivated by Paul
and Vigneault, such as:
 Vigneault called Thomas an “uppity nigger,” a “nigger,”
“stupid,” told Thomas to “suck his dick,”, and that he
wanted to “fuck plaintiff in his “ass because [Thomas] was
a black “faggot.”
 Paul called Thomas a “punk, asshole, bitch, female, stated
“that his balls had [a] higher I.Q. than [Thomas’s],”
“invit[ed] [Thomas] to his privates area,” and wondered
aloud what he could expect from “Obama’s kind.”
 Duffy Striker, a Caucasian inmate with a lower pay grade
than Thomas, earned more money in Laundry than Thomas did
on several occasions;
 Caucasian inmates working in Laundry received bonus pay for
the month May 2014 that Thomas did not receive, despite
working there until May 29;
 When Striker left the Laundry to work in the prison
commissary, defendants gave Thomas that inmate’s position,
but when the Caucasian inmate was reassigned to Laundry,
Paul told Thomas to relinquish the clerk position to the
Caucasian inmate, or lose his job, stating that Thomas “was
not a smart enough nigger”;
 Paul and Vigneault directed Thomas to lie to FCI-Berlin
officials during inspections of the Laundry to hide safety
concerns, stating that Thomas was a “porch monkey and to do
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as he was told.”
 When Thomas was fired from the Laundry, Paul or Vigneault
told Thomas he would have to “suck his dick” to keep his
job. Paul then told Thomas to “get his black ass out.”
Id.
Thomas reported Paul and Vigneault’s mistreatment of him to
the prison’s Special Investigation Unit (“SIS”). In June 2014,
Thomas contacted the FCI-Berlin Trust Fund Supervisor, D.
Richmond, to complain about the loss of his Laundry job and to
request reinstatement to that job, with back pay. Thomas
alleges that Richmond lied to Thomas about the reason he had
been fired and did not respond to Thomas’s requests for
restoration to his Laundry job and back pay. Richmond also
informed Thomas that although an SIS investigation was being
conducted, Thomas would not be informed of the investigation’s
results. Thomas claims that Richmond’s actions in relation to
these incidents were motivated by racial discrimination against
Thomas.
Discussion
I. Claims to be Served
The following claims for damages, asserted under Bivens v.
Six Unknown Named Fed. Narc. Agents, 403 U.S. 388 (1971), may
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proceed:
1. Defendants Vigneault and Paul violated Thomas’s Fifth
Amendment equal protection rights by discriminating against
him on the basis of his race by:
a. firing Thomas from his job at the FCI-Berlin
Laundry on the basis of his race;
b. paying Thomas less than white inmates and/or
denying Thomas bonuses afforded to white inmates, when
the white inmates had a lower pay grade than Thomas;
and
c. demoting Thomas to give a white inmate Thomas’s
preferential work assignment on the basis of Thomas’s
race.
2. Defendants Vigneault and Paul violated Thomas’s First
Amendment right to petition the government for a redress of
grievances by firing Thomas from his job at the FCI-Berlin
Laundry in retaliation for Thomas’s stated intention to
report Vigneault’s and Paul’s sexually-charged and racially
discriminatory behavior to prison officials.
3. Thomas alleges that defendants Vigneault and Paul, on
two occasions, directed Thomas to lie to prison officials
and American Correctional Association auditers during
inspections, to hide improper practices that were taking
place under Vigneault’s and Paul’s supervision, by
threatening to fire Thomas if he did not lie as instructed,
in violation of Thomas’s First Amendment free speech
rights.
In an Order issued simultaneously with this Report and
Recommendation, the court directs service of these three claims
on defendants Vigneault and Paul.
II. Verbal Harassment Claims
Thomas alleges that defendants violated his Fifth Amendment
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Due Process rights by discriminatorily engaging in sever
sexually and racially charged verbal harassment during the
fifteen months Thomas worked in the FCI-Berlin Laundry.
Plaintiff cannot state a claim for relief under § 1983 based on
derogatory language or verbal threats and harassment. See
DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“The use of
racially derogatory language, while unprofessional and
deplorable, does not violate the Constitution. Standing alone,
simple verbal harassment does not constitute cruel and unusual
punishment, deprive a prisoner of a protected liberty interest
or deny a prisoner equal protection of the laws.” (footnote and
citations omitted)). Accordingly, the district judge should
dismiss Thomas’s verbal harassment claims.
III. Fair Labor Standards Act Claim
Thomas asserts claims under the Fair Labor Standards Act
(“FLSA”), alleging that he was denied appropriate pay. FLSA,
however, does not apply to prisoners who work inside the prison,
for the prison. See Smith v. Dart, 803 F.3d 304, 314 (7th Cir.
2015); Castle v. Eurofresh, Inc., 731 F.3d 901, 906-07 (9th Cir.
2013); Wilkerson v. Samuels, 524 F. App’x 776, 779 (3d Cir.
2013). Accordingly, Thomas’s FLSA claims should be dismissed.
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IV. Title VII Claim
Thomas asserts that his right not to be discriminated
against on the basis of his race at his federal prison job is
protected by Title VII, 42 U.S.C. § 2000e. “Prisoners working
in prison industries are not ‘employees’ under Title VII and
thus it does not, [sic] apply to them.” Simon v. Fed. Prison
Indus., Inc., No. 03-10792-JLT, 2003 U.S. Dist. LEXIS 27268, at
*7 n.7, 2003 WL 26128191, at *2 n.7 (D. Mass. July 15, 2003)
(citation omitted). Accordingly, to the extent Thomas seeks
relief under Title VII, that claim should be dismissed.
V. Claims Asserted on Behalf of Other Inmates
In his complaint, Thomas describes a situation in which a
Caucasian inmate was fired from the Laundry for stealing, and
that job was not filled for two months, after which time the
same white inmate was rehired to the position. Thomas states
that there were African-American and Hispanic inmates available
and eligible to fill the petition at the time the Caucasian
inmate was fired who Paul and Vigneault did not hire. Thomas,
acting pro se, cannot assert the rights of other inmates in this
action. See 28 U.S.C. § 1654; LR 83.2(d). Accordingly, these
claims should be dismissed.
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VI. Other Named Defendants
A. Trust Fund Supervisor A. Richmond
Thomas alleges that FCI-Berlin Trust Fund Supervisor A.
Richmond lied to Thomas, and denied Thomas reinstatement to his
Laundry job with back pay, on the basis of racial
discrimination. Stripped of legal conclusions about race
discrimination, the complaint contains no facts to suggest that
Richmond’s behavior was motivated by racial animus or was
otherwise discriminatory. Accordingly, Thomas’s claims against
Richmond should be dismissed from this action, and Richmond
should be dropped as a defendant.
B. Warden E. L. Tatum and Bureau of Prisons
Thomas has not alleged any facts indicating that either
Warden Tatum or the BOP have, themselves, acted, or failed to
act, in a manner that violated Thomas’s rights. Without such a
showing, supervisory prison officials are not liable for the
acts of their subordinates, based solely on their supervisory
authority over, or even awareness of, those acts. See Soto-
Torres v. Fraticelli, 654 F.3d 153, 159 (1st Cir. 2011); see
also Iqbal, 556 U.S. at 676. Accordingly, the claims asserted
against Tatum and the BOP should be dismissed from this action,
and those defendants should be dropped from this case.
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Conclusion
For the foregoing reasons, the district judge should
dismiss Thomas’s claims: against defendants Tatum, the BOP, and
Richmond; and asserting verbal harassment, and violations of
FLSA and Title VII, and his claims asserting violations of the
rights of other inmates, for failure to state a claim upon which
relief can be granted. Defendants Tatum, the BOP, and Richmond
should be dropped from this action, as no viable claim remains
pending against them.
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
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 16, 2016
cc: Oliver Thomas, pro se
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