SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GUILLERMO RIVERA, : : Plaintiff, : : v. : Civil Action No. 12-0168 (RLW) : DEPARTMENT OF JUSTICE, et al., : : Defendants. :

MEMORANDUM OPINION1

This matter is before the Court on defendants’ motion to dismiss. For the reasons

discussed below, the motion will be granted.

I. BACKGROUND

In the Northern District of Illinois, Guillermo Rivera (“plaintiff”) “pleaded guilty to four

counts of bank robbery, see

(a), and was sentenced to a total of 104 months’

imprisonment.” United States v. Rivera, 338 F. App’x. 532, 533 (7th Cir. 2009).2 He is serving

his sentence in the custody of the Federal Bureau of Prisons (“BOP”). See Civil Complaint

1 This unpublished memorandum opinion is intended solely to inform the parties and any reviewing court of the basis for the instant ruling, or alternatively, to assist in any potential future analysis of the res judicata, law of the case, or preclusive effect of the ruling. The Court has designated this opinion as “not intended for publication,” but this Court cannot prevent or prohibit the publication of this opinion in the various and sundry electronic and legal databases (as it is a public document), and this Court cannot prevent or prohibit the citation of this opinion by counsel. Cf. Fed. R. App. P. 32.1. Nonetheless, as stated in the operational handbook adopted by our Court of Appeals, “counsel are reminded that the Court's decision to issue an unpublished disposition means that the Court sees no precedential value in that disposition.” D.C. Circuit Handbook of Practice and Internal Procedures 43 (2011). 2 After having “embarked on a bank robbery spree” in Illinois, his “string of bank robberies had continued in Indiana.” Rivera, 338 F. App’x at 533. “Indictments followed in both the Northern District of Indiana and the Northern District of Illinois.” Id. “In July 2008, he pleaded guilty in the Northern District of Illinois and, in October, was sentenced to 104 months. Seven months later, on the eve of trial in the Northern District of Indiana, he pleaded guilty to three counts of bank robbery.” United States v. Rivera,

(7th Cir. 2010). 1

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

(“Compl.”) at 2 (page numbers designated by plaintiff).3 He brings this action against the

United States Department of Justice (“DOJ”) and the BOP alleging that he has been “the victim

of many civil rights violations while in custody, at the hands of a rogue Warden, who is

permitted to operate outside of the law,” with respect to prisoners at the United States

Penitentiary in Terre Haute, Indiana (“USP Terre Haute”).4

Plaintiff allegedly was “blackballed and denied employment in every department of the

prison,” id. at 5, and was denied “freedom of religious expression” when staff “confiscated [his]

crucifix[,] . . . Bible and other religious study guides.” Id. His civil rights allegedly were further

violated when staff confiscated legal materials and denied him access to the law library while

plaintiff was involved in legal proceedings in an Indiana state court and a post-conviction

challenge to his sentences then pending in the United States Court of Appeals for the Eleventh

Circuit.5 Id. at 5-6. Plaintiff also alleges that he was the victim of racism, in that prisoners at

USP Terre Haute are assigned cells based on race such that “Whites must be housed with Whites

. . . Blacks must be housed with Blacks . . . Hispanics with Hispanics etc.” Id. at 6. While being

escorted from a local hospital back to prison in July 2011, he was allowed to fall, “causing injury

to his back, neck, and shoulder,” that he “[h]as been made to wear the same Dirty Clothing[] for

weeks at a time” and that he “has gone without clean linens for a month or longer.” Id. at 7. He

3 Plaintiff submitted his complaint on a five-page preprinted form to which he attached a handwritten document titled “Civil Complaint.” Unless otherwise specified (“preprinted form”), references to the complaint are references to the handwritten Civil Complaint. 4 Plaintiff since has been transferred to the United States Penitentiary in Coleman, Florida. 5 The subject matter of the case before the Eleventh Circuit pertained to whether the sentences imposed by the Northern Districts of Illinois and Indiana were to run concurrently. The Northern District of Indiana “clarified that the Indiana terms were to commence when Rivera was sentenced in Indiana in May 2009, and run concurrently with the undischarged terms imposed in the Northern District of Illinois . . . .” United States v. Rivera,

(7th Cir. 2012).

2

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

also “has been kept in special housing as punishment for filing grievances,” and the BOP “has

had his grievances stalled over and over again, in an effort to discourage or confuse” him. Id. at

8. For these alleged harms, “[p]laintiff seeks damages in the amount of[] $15,000,000.00

(Fifteen Million Dollars) for mental and emotional duress, suffering and pain, for negligence and

discrimination, inflicted upon his pe[r]son, while in the custody of the [DOJ] and the [BOP].” 6

Id. at 9. He also “demands an immediate release from custody.” Id.

The Court construes the complaint as one bringing constitutional tort claims against the

United States demanding monetary damages for violations of the United States Constitution by

BOP officials or employees. See Scurlock v. Lappin,

(D.D.C. 2012)

(characterizing prisoner’s complaint as “a Bivens-style action”).7 Defendants have filed a motion

to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure for lack of subject matter

jurisdiction, improper venue, and for failure to state a claim upon which relief can be granted.

See generally Mem. in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”) at 5-15.8

6 Plaintiff declares that, “should [he] pursue Class Action Status at a later date,” he may bring an action “for Civil Rights violations against other Inmates[].” Compl. at 9. As a lay person, plaintiff cannot advance the claims of any other individual. See

(“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel . . . .”); Georgiades v. Martin–Trigona,

(D.C. Cir. 1984) (holding that a lay person cannot appear as counsel for others); Oxendine v. Williams,

(4th Cir. 1975) (“[I]t is plain error to permit this imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action.”) (citation omitted). Nor is plaintiff qualified to represent the interests of other inmates in a class action. See Maldonado v. Terhune,

(D.N.J. 998) (quoting Caputo v. Fauver,

(D.N.J. 1992), aff'd,

(3d Cir. 1993)) (“Courts have consistently held that a prisoner acting pro se is inadequate to represent the interests of his fellow inmates in a class action.”) (internal quotation marks omitted)). 7 Under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971), a plaintiff has “an implied private action for damages against federal officers alleged to have violated [his] constitutional rights.” Corr. Servs. Corp. v. Malesko,

(2001). 8 Defendants assert that, because plaintiff is not incarcerated in this district, “venue is not likely to be proper in the District of Columbia,” Defs.’ Mem. at 5, particularly absent a showing by plaintiff “of any compelling reason . . . or any interest in proceeding in the District of 3

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

II. DISCUSSION

A. Dismissal Under Rule 12(b)(1)

Subject matter jurisdiction is a requirement of Article III of the U.S. Constitution and by

federal statute. See Wilson v. U.S. Dep’t of Transp.,

(D.D.C. 2011). It is

the plaintiff’s burden to establish that the Court has subject matter jurisdiction. Lujan v.

Defenders of Wildlife,

(1992). For purposes of a Rule 12(b)(1) motion, the

Court accepts the factual allegations of the complaint as true, and it “may consider materials

outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”

Jerome Stevens Pharm., Inc. v. Food & Drug Admin.,

(D.C. Cir. 2005).

1. Plaintiff’s Claims for Damages Under

Plaintiff identifies two defendants to this action -- the DOJ and the BOP -- and he relies

solely on

as the basis for this Court’s jurisdiction.9 See Compl. (preprinted

form) at 1. Defendants move to dismiss the complaint on the ground that sovereign immunity

Columbia,”

. They argue for dismissal of this action for improper venue or, alternatively, for transfer of this action to the United States District Court for the Northern District of Indiana, the district where USP Terre Haute is located and where the events giving rise to the complaint occurred.

For purposes of this Memorandum Opinion, the Court presumes that venue in this district is proper and will dismiss the complaint on the basis of the other arguments defendants raise in their motion. 9 In relevant part, Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

(emphasis added).

4

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

bars plaintiff’s civil rights claims under § 1983 for monetary damages against these federal

entities. See Defs.’ Mem. at 5, 11-12.

“It is elementary that the United States, as sovereign, is immune from suit save as it

consents to be sued . . . , and the terms of its consent to be sued in any court define that court’s

jurisdiction to entertain the suit.” United States v. Mitchell,

(1980) (quoting

United States v. Sherwood,

(1941) (internal quotation marks and brackets

omitted)); Fed. Deposit Ins. Corp. v. Meyer,

(1994) (“Absent a waiver,

sovereign immunity shields the Federal Government and its agencies from suit.”). “To sustain a

claim that the Government is liable for awards of monetary damages, the waiver of sovereign

immunity must extend unambiguously to such monetary claims.” Lane v. Peña,

(1996) (citation omitted).

In his opposition, plaintiff barely mentions sovereign immunity, and instead argues that

qualified immunity should not bar his claims. See Pl.’s Resp. to Defs.’ Mot. to Dismiss (“Pl.’s

Opp’n”) at 10-11. He contends that court review of “conduct by prison officials under specific

constitutional provisions such as the Eighth Amendment . . . or general principles stemming from

the Due Process Clause” is available under § 1983. Id. at 10. A government official or

employee sued in his individual capacity “may, depending on his position, be able to assert

personal immunity defenses,” Kentucky v. Graham,

(1985), such as qualified

immunity, see Harlow v. Fitzgerald,

(1982). When that official or employee is

sued in his official capacity, or, as in this case, if a government entity is the defendant, a

qualified immunity defense is unavailable. See Graham,

.

Plaintiff identifies no provision by which the United States has waived its immunity with

respect to constitutional tort claims. Section 1983 does not apply to federal actors, Settles v. U.S.

5

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

Parole Comm’n,

(D.C. Cir. 2005), and “[d]efendants argue correctly that

the United States has not consented to be sued for monetary damages based on a constitutional

violation or, in other words, for a “‘Bivens-type cause of action directly against a federal

agency.’” Mullen v. Bureau of Prisons,

(D.D.C. 2012) (citing Meyer,

). Absent a waiver of sovereign immunity, this Court lacks subject matter

jurisdiction over plaintiff’s claims for money damages against the DOJ and the BOP. These

claims therefore must be dismissed. See, e.g., Jordan v. Quander,

(D.D.C. 2012); Bourdon v. Mabus,

(D.D.C. 2011).

2. Plaintiff’s Claim Arising from the Confiscation of Religious and Personal Property10

Plaintiff alleges that staff at USP Terre Haute confiscated his crucifix, Bible, and

religious study guides. Compl. at 5. Insofar as plaintiff demands monetary compensation from

the United States for these actions, he must proceed under the Federal Tort Claims Act

(“FTCA”), which waives the federal government’s sovereign immunity, see United States v.

Muniz,

(1963) (holding that, by enacting the FTCA, “Congress intended to

waive sovereign immunity in cases arising from prisoners’ claims”), and renders “[t]he United

States . . . liable . . . relating to tort claims, in the same manner and to the same extent as a private

10 Plaintiff invokes the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq., and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq., in his opposition to defendants’ motion, yet he alleges no viable claim under either statute. “[F]ederal courts have held that RLUIPA ‘only applies to state and local governments, not a federal prison,’” Garraway v. Lappin, No. 4:CV-10-1697,

, at *3 (M.D. Pa. Mar. 21, 2012) (quoting Pineda-Morales v. De Rosa, No. 03-4247,

, at *4 (D.N.J. July 6, 2005)), and plaintiff’s bald assertion that his “freedom of religious expression came under attack because he openly displayed his cross,” Compl. at 5, “does not fall within the scope of the RFRA” absent a showing that “a substantial burden is placed on his . . . ability to exercise” his religion. Garraway,

, at *7 (citation and internal quotation marks omitted). 6

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

individual under like circumstances . . . .”

. There are limitations under and

exceptions to the FTCA, however, which militate dismissal of plaintiff’s claim.

First, there is an exhaustion requirement:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.

(a). “The FTCA bars claimants from bringing suit in federal court until they

have exhausted their administrative remedies,” and plaintiff’s apparent “fail[ure] to heed that

clear statutory command” warrants dismissal of this claim. McNeil v. United States,

(1993); see Henderson v. Ratner, No. 10-5035,

, at *1 (D.C. Cir.

June 7, 2010) (per curiam) (affirming dismissal of FTCA claim where “[a]ppellant failed to

demonstrate that he exhausted his administrative remedies before filing suit in the district

court”); Hammond v. Fed. Bureau of Prisons,

(D.D.C. 2010)

(dismissing FTCA claim for lack of subject matter jurisdiction where plaintiff had not

“established by a preponderance of the evidence that he administratively exhausted his FTCA

claim with the BOP before commending this action”).

Excluded from the FTCA is “[a]ny claim arising in respect of . . . the detention of any

goods, merchandise, or other property by any officer of customs or excise or any other law

enforcement officer.”

(c). “Section 2680(c) forecloses lawsuits against the

United States for the unlawful detention of property by ‘any,’ not just ‘some,” law enforcement

officers,” including BOP officers. Ali v. Fed. Bureau of Prisons,

(2008).

7

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

Insofar as plaintiff demands damages arising from the confiscation of his crucifix, Bible,

religious materials and other personal property by BOP staff, the claim must be dismissed.

B. Dismissal Under Rule 12(b)(6)

A plaintiff need only provide a “short and plain statement of [his] claim showing that

[he] is entitled to relief,” Fed. R. Civ. P. 8(a)(2), that “give[s] the defendant fair notice of what

the . . . claim is and the grounds upon which it rests,” Erickson v. Pardus,

(2007)

(per curiam) (quoting Bell Atl. Corp. v. Twombly,

(2007)) (internal quotation

marks omitted). A complaint may be dismissed for failure to state a claim upon which relief can

be granted. Fed. R. Civ. P. 12(b)(6). In considering such a motion, the “complaint is construed

liberally in the plaintiff[’s] favor, and [the Court grants the plaintiff] the benefit of all inferences

that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994).

A complaint survives a motion under Rule 12(b)(6) only if it “contain[s] sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(2009). A claim is facially plausible “when the plaintiff pleads factual

content that allows the [C]ourt to draw [a] reasonable inference that the defendant is liable for

the misconduct alleged.”

(quoting Twombly,

). “[A] complaint [alleging]

facts that are merely consistent with a defendant’s liability . . . stops short of the line between

possibility and plausibility of entitlement to relief.”

(internal quotation marks omitted) (citing

Twombly,

). Although a pro se complaint “must be held to less stringent

standards than formal pleadings drafted by lawyers,” Erickson,

(internal quotation

marks and citation omitted), it too, “must plead ‘factual matter’ that permits the court to infer

8

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

‘more than the mere possibility of misconduct,’” Atherton v. District of Columbia Office of the

Mayor,

(D.C. Cir. 2009) (quoting Iqbal,

).

1. Exhaustion of Administrative Remedies

In relevant part, the Prison Litigation Reform Act (“PLRA”) provides:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined to any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). Defendants move to dismiss on the ground that plaintiff failed to exhaust

his available administrative remedies prior to filing this lawsuit. See Defs.’ Mem. at 6-8.

The PLRA’s exhaustion requirement is mandatory and “applies to all prisoners seeking

redress for prison circumstances or occurrences.” Porter v. Nussle,

(2002);

see Jones v. Bock,

(2007). Exhaustion under the PLRA requires proper

exhaustion, meaning that a prisoner must comply with procedural rules, including filing

deadlines, as a precondition to filing a civil suit in federal court, regardless of the relief offered

through the administrative process. See Woodford v. Ngo,

(2006); Booth v.

Churner,

(2001). Thus, a prisoner may file a civil action concerning

conditions of confinement under federal law only after he has exhausted the prison’s

administrative remedies. See Jackson v. District of Columbia,

(D.C. Cir.

2001). Exhaustion under the PLRA is not a jurisdictional requirement, however. See Jones,

; Woodford,

. It is instead an affirmative defense, Jones,

, which “the defendants have the burden of pleading and proving.” Brengettcy v. Horton,

(7th Cir. 2005) (quoting Dale v. Lappin,

(7th Cir. 2004)

(internal quotation marks omitted)); Wyatt v. Terhune,

(9th Cir.) (holding

that “nonexhaustion under § 1997e(a) . . . does not impose a pleading requirement,” but “creates

9

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

a defense [such that] defendants have the burden of raising and proving the absence of

exhaustion”), cert. denied sub nom Alameida v. Wyatt,

(2003).

The BOP’s Administrative Remedy Program is the means by which a federal inmate may

seek “formal review of any grievance that relates to any aspect of [his] confinement.” Defs.’

Mem., Ex. A (“Albright Decl.”) ¶ 4. First, if the inmate has not successfully resolved the matter

informally, see

, he may file a formal administrative remedy request at the

institutional level to the Warden. See

(a). If the inmate is not satisfied with

the Warden’s response, within 20 calendar days he may file an appeal to the Regional Director.

See

(a). Finally, if the inmate is dissatisfied with the Regional Director’s

determination, within 30 calendar days he may appeal to the General Counsel at BOP’s Central

Office. See

“Appeal to the Central Office is the final administrative appeal in the BOP,” and

an inmate’s “administrative remedy is finally exhausted when the BOP’s Central Office has

issued its formal response . . . .” Albright Decl. ¶ 4.

According to the BOP’s declarant, “[p]laintiff has appealed a total of five . . .

administrative remedies to the Central Office.”

. Of these five administrative remedies,

two appear to be related to the claims in the lawsuit: plaintiff alleged negligent medical care and

treatment (Remedy No. 665654-A1), and that “staff acted in an unsafe matter while escorting

him” (Remedy No. 650837-A1).11

. Neither of these administrative remedies was

exhausted prior to the filing of this lawsuit.

Defendants argue that, because plaintiff did not

follow the administrative remedy process through to the final appeal with respect to these two

requests, and because he did not file an administrative remedy request at all with respect to the

11 The remaining three administrative remedies “are unrelated to the claims made in [this] lawsuit.” Defs.’ Mem., Albright Decl. ¶ 7. 10

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

remaining claims alleged in the complaint prior to filing this lawsuit, his claims are subject to

dismissal. See Defs.’ Mem. at 8.

According to plaintiff, he “initiated [grievances] through the counselor who was assigned

by the Warden, but [the] Warden suppressed the filed grievance[s] in many cases and refused the

filings which were the most damaging to him.” Pl.’s Opp’n at 4. He further claimed that the

“Warden was actively engaged in stonewalling, therefore, denying the plaintiff the right to us[e]

the Prison Litigation procedure.”

“Plaintiff exercised Due Diligence and made a good faith

effort to solve all disputes by trying to use the grievance procedures as required by the Prison

Litigation Reform Act,”

, and to this end has submitted his own affidavit listing

grievances he claims to have filed timely and were rejected. See Notice of Default [ECF No.

20].

Exhaustion might be excused if, for example, “prison officials refuse to provide the

required grievance forms upon request or ignore such a request,” Albino v, Baca,

,

1034 n.7 (9th Cir. 2012), or if the inmate receives “threats of retaliation for filing a grievance,”

(citing Turner v. Burnside,

(11th Cir. 2008)). Plaintiff makes no such

allegations here. Rather, he has concluded that the administrative grievance process is futile, see

Pl.’s Opp’n, Ex. (Affidavit dated January 30, 2012), but his assessment of the viability of the

process does not render the process unavailable. See Booth,

n. 6 (finding that the

Court will not “read futility or other exceptions into statutory exhaustion requirements where

Congress has provided otherwise”); Jeanes v. U.S. Dep’t of Justice,

(D.D.C. 2002) (“The plaintiff's belief that availing himself of those grievance procedures is futile

is not a sufficient reason for bypassing portions of the administrative remedy process.”).

11

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

Defendants demonstrate that plaintiff has failed to exhaust his available administrative

remedies with respect to any of the matters set forth in his complaint, and their motion to dismiss

on this basis will be granted. Even if plaintiff had exhausted his administrative remedies, the

claims over which this court has subject matter jurisdiction still are subject to dismissal under

Rule 12(b)(6).

2. Retaliation

According to plaintiff, because of his use of the administrative remedy process in 2009

regarding an “assault[] by a staff member who has a lengthy history of abusive behavior towards

inmates,” the Warden at USP Terre Haute “began to retaliate creating a living horror, which has

scar[re]d the plaintiff emotionally and psychologically.” Compl. at 4. The Court construes these

statements as an allegation of retaliation in violation of the First Amendment for plaintiff’s

attempts to redress grievances. See Byrd v. Moseley,

(D.D.C. 1996)

(construing plaintiff’s complaint “as a damages action pursuant to

based on the

defendants’ violation of the plaintiff's First Amendment rights by retaliating against him for

filing a previous lawsuit”).

“Within the prison context, a viable claim of First Amendment retaliation entails five

basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

exercise of his First Amendment rights, and (5) the action did not reasonably advance a

legitimate correctional goal.” Anderson-Bey v. District of Columbia,

(D.D.C. 2006) (quoting Rhodes v. Robinson,

(9th Cir. 2005) (citation

omitted)); see Garcia v. District of Columbia,

(D.D.C. 1998). The act of

filing an administrative grievance is an activity protected by the First Amendment. Garcia,

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

Supp. 2d at 6. “[P]rison officials may not retaliate against an inmate for exercising a

constitutionally protected right.” Adams v. James,

(11th Cir. 1986); see

Pryor-El v. Kelly,

(D.D.C. 1995) (alleging retaliation for having filed a

civil complaint).

Missing from plaintiff’s complaint is any mention of causation. See Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle,

(1977). “To satisfy the causation link, a

plaintiff must allege that his . . . constitutional speech was the ‘but for’ cause of the defendants’

retaliatory action.” Aref v. Holder,

(D.D.C. 2011) (quoting Hartman v.

Moore,

(2006)). Plaintiff not only bears the “burden . . . to show that his

conduct was constitutionally protected,” but also to show “that this conduct was a ‘substantial

factor’ or to put it on other words, that it was a ‘motivating factor’” in defendants’ decision to act

as they did. Doyle,

. Plaintiff has not alleged, for example, “a chronology of

events which may be read as providing some support for an inference of retaliation.” McDonald

v. Hall,

(1st Cir. 1979); see Conlon v. Coughlin,

, 872 (2d Cir.

1995) (finding that verified complaint’s allegations that plaintiff “filed two lawsuits complaining

about his conditions of confinement” followed by disciplinary charges which prevented his

participation in a prison program). Absent allegations that the filing of his administrative

grievances was the motivating factor in the alleged acts of retaliation, his retaliation claim must

be dismissed. See, e.g., Mayo v. Fields, No. 1:10-CV-1607,

, at *4 (N.D. Ga.

July 8, 2010) (finding that complaint did not state a retaliation claim because it did not allege

facts showing a causal relationship between the protected speech and disciplinary reports against

the prisoner plaintiff).

13

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

3. Age Discrimination

Plaintiff alleges that he “was often called old man by staff,” and that, “when job openings

became available, they were given to younger inmates [with] less seniority in the institution.”

Compl. at 5. Defendants argue that this statement does not adequately allege discrimination

based on age. See Defs.’ Mem. at 10. The Court concurs. The allegations of the complaint are

so vague, so conclusory, and so lacking in detail that the Court simply cannot “draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

. Furthermore, as a federal prisoner, plaintiff has no protectable interest in prison

employment. See Garza v. Miller,

(7th Cir. 1982) (finding that federal

prisoner has no “property or liberty interest in prison employment”), cert. denied,

(1983). Plaintiff sincerely may believe that defendants discriminated against him because of his

age, but his belief without sufficient factual support does not survive defendants’ motion to

dismiss.

4. Access to the Courts

According to plaintiff, in 2011 he “was engaged in two very important court cases,” one

in the United States Court of Appeals for the Eleventh Circuit, and the other in an Indiana state

court regarding “the adoption of [plaintiff’s] seven year [old] son, Isaac.” Compl. at 5. “[T]he

Warden and the Captain [allegedly] confiscated all the plaintiff[’]s legal documents, all legal

material pertinent to both cases, therefore, denying [him] access to the courts” and depriving him

“of the ability to participate in these court proceedings.” Id. at 5-6. As a result of these actions,

plaintiff alleged, “the adoption was completed, and the plaintiff will never be allowed to play a

role in his son[’]s life.” Id. at 6. He notes that the Eleventh Circuit “granted [him three]

extensions,” id., but does not describe the outcome of those proceedings in his complaint.

14

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

An inmate has a First Amendment right of access to the courts that is adequate, effective,

and meaningful. See Bounds v. Smith,

(1977); Ex parte Hull,

(1941). It is not enough for an inmate to state in a conclusory fashion that he was

denied access to the courts; rather, he also must allege actual injury as a result of the denial in

that an actionable claim was rejected, lost, or prevented from being filed. See Lewis v. Casey,

(1996) (stating that an inmate alleging violation of Bounds must show actual

injury, without which he has no standing to raise the claim). An “actual injury” is “actual

prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing

deadline or to present a claim.”

(citation and internal quotation omitted).

With respect to the adoption proceeding, plaintiff’s own exhibits indicate that he was

represented by appointed counsel. See, e.g., Pl.’s Opp’n, Ex. (Appearance Form). And it

appears that counsel had been appointed to represent plaintiff on appeal to the Eleventh Circuit,

that “his . . . lawyer . . . concluded that the appeal is frivolous,” and that counsel sought to

withdraw from the case.12 United States v. Rivera,

(7th Cir. 2012). It

cannot be said that, under these circumstances “an actionable claim . . . which [plaintiff] desired

to bring has been lost or rejected, or that the presentation of such a claim is currently being

prevented.” Lewis,

.

5. Race Discrimination

Plaintiff claims to have “experienced racism, which is rampant in the Terre Haute

facility.” Compl. at 6. According to plaintiff, cell assignments are made based on a prisoner’s

race.

He recounts an incident in 2010 during which Mexican prisoners were “corral[l]ed . . .

in an isolated part of the prison, because of a gang related incident,” and remained separate and

12 Appellate counsel’s motion to withdraw was granted, and the appeal was dismissed. Rivera,

. 15

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

on lockdown status for several months. Id. at 7. Plaintiff does not indicate whether he was

among the inmates so separated, but he claims that “[n]o other group of inmates, Black or White,

would have been treated in this manner.” Id. The Court construes these assertions as alleging a

violation of plaintiff’s right to equal protection.

Defendants argue that, although “segregation of prisoners on the basis of race is

prohibited,” allowances can be made “for the ‘necessities of prison security and discipline.’”

Defs.’ Mem. at 13 (quoting Lee v. Washington,

(1968) (per curiam)).13

Although “prison authorities have the right, acting in good faith and in particularized

circumstances, to take into account racial tensions in maintaining security, discipline, and good

order in prisons and jails,” Lee,

(Black, Harlan and Stewart, JJ, concurring), “[a]

generalized expectation of racial violence is insufficient.” Mickens v. Winston,

(E.D. Va. 1978). If, for example, defendants made cell assignments based on race in

response to a specific threat of violence, or to further a compelling interest such as prison safety

and security, race-based cell assignments may be permissible. See, e.g., Fisher v. Ellegood,

(11th Cir. 2007) (finding that “racial separation after receiving an inmate’s

complaint that the white inmates in [plaintiff’s] cell block feared violence from the black inmates

in that block” both furthered a compelling interest in prison safety and “was narrowly tailored to

neutralize threat of violence”); Tooley v. Boyd,

(E.D. Mo. 1996) (rejecting

equal protection claim of white inmate confined to administrative segregation unit after race riot

where “an internal investigation . . . concluded that the riot was the result of racial tensions

between certain white inmates and black inmates on the tier[,] . . . that the white inmates

13 In Lee, the Supreme Court affirmed a ruling “that certain Alabama statutes violate the Fourteenth Amendment to the extent that they require segregation of the races in prisons and jails.” Lee,

.

16

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

instigated the riot[,] and that plaintiff was one of the instigators and main participants in the

riot”).

Plaintiff’s bald assertion of race discrimination is not sufficient as it lacks enough factual

weight to push his equal protection claim “across the line from conceivable to plausible,”

Twombly, 555 U.S. at 570), and it must be dismissed.

6. Deliberate Indifference to Serious Medical Needs

Plaintiff alleges that, after undergoing surgery at a local hospital, he “was allowed to fall

by his escort/staff,” notwithstanding a doctor’s instructions “not to move the patient until the

anesthesia wore off.” Id. at 7. His escorts allegedly “ignored the . . . orders, and the plaintiff

collapsed, causing injury to his back, neck, and shoulder.” Id. The Court construes these

allegations as plaintiff’s attempt to claim “deliberate indifference to serious medical needs,” so

as to “constitute[] the unnecessary and wanton infliction of pain . . . proscribed by the Eighth

Amendment.” Estelle v. Gamble,

(1976) (citation and internal quotation marks

omitted). “Essentially, the Estelle test is a two-pronged standard requiring both a serious

medical need evidenced by the prisoner and deliberate indifference on the part of the prison

officials.” Cox v. District of Columbia,

(D.D.C. 1992). There are too few

factual allegations from which the Court might conclude that plaintiff’s has a serious medical

need. And his claim does not rise to the level of a constitutional violation because there are no

factual allegations whatsoever to show that “prison officials have prevented [him] from receiving

recommended treatment or [have] denied [him] access to medical personnel capable of

evaluating the need for treatment.”

(quoting Ramos v. Lamm ,

(10th Cir.

1980)). The complaint fails to address the subjective element at all, as it sets forth no factual

17

SUMMARY MEMORANDUM OPINION NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

allegations suggesting that any particular BOP staff member was aware of yet deliberately

refused to address his serious medical needs.

III. CONCLUSION

The Court concludes that it lacks subject matter jurisdiction over plaintiff’s Bivens-style

claims and his claim under the FTCA, and that the complaint fails to state any other claim upon

which relief can be granted. Accordingly, defendants’ motion to dismiss will be granted. An

Order accompanies this Memorandum Opinion. Digitally signed by Judge Robert L. Wilkins DN: cn=Judge Robert L. Wilkins, o=U.S. District Court, ou=Chambers of Honorable Robert L. Wilkins, [email protected], c=US Date: 2013.03.28 14:12:41 -04'00'

DATE: March 28, 2013 ROBERT L. WILKINS United States District Judge

18