UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Ronald Blue West

V. Case No. 13-cv-528-SM Opinion No.

Deborah G. Schult, Warden, FCI Berlin

O R D E R

Before the court is Ronald Blue West's: complaint (doc. no.

1), motion to appoint counsel (doc. no. 3), motion to show

exhaustion of administrative remedies (doc. no. 8), motion to

attempt to settle administrative remedies (doc. no. 11), and

motion for summary judgment (doc. no. 13). West is a prisoner at

the Federal Correctional Institution in Allenwood, Pennsylvania

("FCI-Allenwood"), who was incarcerated at relevant times in the

Federal Correctional Institution in Berlin, New Hampshire ("FCI-

Berlin"). West's complaint asserts claims against FCI-Berlin

prison officials under Bivens v. Six Unknown Fed. Narcotics

Agents,

(1971), and the Federal Tort Claims Act

("FTCA"),

(b) and §§ 2671-2680. The matter is

before the court for preliminary review pursuant to 28 U.S.C.

§ 1915A. Claims

West has asserted that FCI-Berlin prison officials violated

his federal constitutional rights, contravened federal Bureau of

Prisons ("BOP") regulations, and/or engaged in tortious conduct,

actionable under Bivens and/or the FTCA, in that, prison

officials :

1. Improperly classified West, resulting in the denial of a prison job, in violation of West's rights to due process and egual protection under the Fifth Amendment, and BOP nondiscrimination policies;

2. Denied West his own denture adhesive, in violation of the Eighth Amendment, the Fifth Amendment, and BOP nondiscrimination policies;

3. Post-dated a grievance, thereby rendering that grievance untimely, in violation of the Fifth Amendment, and BOP nondiscrimination policies; and

4. Reclassified and transferred West to FCI- Allenwood after he had filed grievances at FCI-Berlin, in retaliation for West's exercise of his First Amendment rights.

Discussion

I. Preliminary Review

A. Standard

The court undertakes a preliminary review of West's

complaint, pursuant to 28 U.S.C. § 1915A, to determine whether

the action may proceed. In determining whether a pro se

complaint states a claim, the court construes the complaint

liberally. See Erickson v. Pardus,

(2007) .

Disregarding any legal conclusions, the court considers whether

2 the factual content in the complaint and inferences reasonably

drawn therefrom, taken as true, state a facially plausible claim

to relief. Hernandez-Cuevas v. Taylor,

(1st

Cir. 2013) (citing Ashcroft v. Iqbal,

(2009)).

B. Egual Protection

West asserts that actions of BOP employees have violated his

Fifth Amendment egual protection rights. To state such a claim.

West must allege facts to show that he was treated differently

than other similarly-situated prisoners, and that the reason for

any different treatment was illegal race discrimination or

discrimination on the basis of some other improper

classification. See LeBaron v. Spencer,

(1st

Cir. 2013).

Stripped of legal conclusions about prison officials'

discriminatory conduct. West has not asserted any facts to

demonstrate that he was treated differently than any similarly-

situated inmate with respect to the events underlying the claims

in this complaint, or that any action taken by any BOP employee

was based on any improper consideration. Accordingly, West has

failed to state a plausible egual protection claim.

C. Denial of Prison Job and Improper Classification

1. Due Process

West complains that he was classified improperly, resulting

in his ineligibility for a prison job in the FCI-Berlin kitchen.

3 Prison inmates do not have a protected liberty interest in any

prison job or classification while incarcerated. See Huff v.

United States, No. 9:09-CV-00520-RBH,

, at *2 n.3

(D.S.C. Mar. 10, 2011) (citing authorities); cf. Santana-Rosa v.

United States,

(1st Cir. 2003) (classification

decisions are discretionary). West has thus failed to state a

plausible Bivens claim concerning his classification or job

status.

2. FTCA

As to the FTCA, the court finds that job assignments and

classification decisions are discretionary functions of prison

administration, and that discretionary functions are not the

proper subject of an FTCA claim. See Huff,

, at *2

n.3 (D.S.C. Mar. 10, 2011) (inmate job assignment is

discretionary act (citing authorities including

(a) (FTCA waiver of sovereign immunity does not apply to

discretionary acts)); see also Santana-Rosa,

(classification decisions are discretionary functions) .

Moreover, the documents filed in connection with the complaint

belie West's allegation that he was classified as a Posted

Picture File ("PPF") inmate without cause. Accordingly, West has

failed to state a plausible FTCA claim with respect to his job

assignment and classification.

4 D. Denture Adhesive

1. Fifth and Eighth Amendment Claims

West alleges that a prison property officer refused to give

him his denture adhesive on one occasion. West's allegations,

taken as true with all reasonable inferences construed in West's

favor, do not show that the failure to provide West with the

denture adhesive constituted "deliberate indifference" to his

"serious medical needs." Farmer v. Brennan,

(1994). Accordingly, West has failed to state a plausible Eighth

Amendment claim.

Furthermore, the prison property officer's failure to give

West his denture adhesive did not deny West due process. See

Bowens v. U.S. Dep't of Justice,

(3d Cir.

2011) ("deprivation of property by a government employee does not

violate due process so long as an adeguate post-deprivation

system is in place," and "BOP's Administrative Remedy Program

. . . gualifies as such an adeguate system" (citing, inter alia,

Hudson v. Palmer,

(1984))). Accordingly, West has

failed to plead a plausible Bivens claim relating to the dental

adhesive.

2. FTCA

Under the FTCA, the United States has not waived its

sovereign immunity for a claim that a prison guard has improperly

lost or detained an inmate's property. See All v. Fed. Bureau of

5 Prisons,

(2008) (citing

(c)).

Accordingly, the FTCA does not provide West with a cause of

action relating to the denture adhesive.

E. Post-Dated Grievance

1. Due Process

West alleges that a prison official improperly post-dated a

grievance he submitted, rendering it untimely, and that in doing

so, prison officials violated his rights under the Due Process

Clause. "The due process clause does not, in and of itself,

confer upon any inmate a right to pursue grievance proceedings

against prison officials." Leavitt v. Allen,

,

(1st Cir. 1995) (unpublished table decision).

Moreover, an inmate cannot base a free-standing due process claim

merely on the allegation that officers failed to follow prison

policies, without also showing that their conduct related to the

deprivation of a protected interest, and that the

"'constitutional minima'" were not otherwise satisfied. Brewster

v. Dretke,

(5th Cir. 2009) (citation omitted).

Here, West has failed to plead facts showing that he was deprived

of a protected interest relating to the grievance, or that post­

deprivation remedies were unavailable. He has thus failed to

state a plausible Bivens claim relating to the postdating of the

grievance.

6 2. FTCA

West has also failed to plead facts sufficient to show that

the conduct of prison officials was tortious, insofar as he has

failed to show that the post-dating of his complaint proximately

caused him any injury, which are requisite elements of a tort

claim. See Taylor v. United States,

(D.N.H. 1996). Accordingly, the complaint fails to state any

plausible FTCA claim relating to the post-dated grievance.

F. Reclassification and Transfer

1. First Amendment Retaliation

West alleges generally that he was reclassified and

transferred to FCI-Allenwood in retaliation for filing grievances

at FCI-Berlin. West has failed to allege any facts, however,

indicating that the reclassification and transfer can be deemed

to be more than de minimis acts. See Jones v. Caruso,

(6th Cir. 2011) (citation omitted) ("alleged

retaliatory transfer ordinarily should be characterized as de

minimis," except where "foreseeable, negative consequences

'inextricably follow' from the transfer" (citations and internal

quotation marks omitted)). Moreover, West has failed to plead

any facts showing a causalconnection between the

reclassification, the transfer, and his conduct in filing

grievances. Accordingly, West has failed to plead a plausible

7 Bivens claim of retaliation relating to his exercise of First

Amendment rights.

2. FTCA

No facts alleged by West suggest any basis for finding the

United States liable under the FTCA for reclassifying West and

transferring him to FCI-Allenwood. C f . Santana-Rosa,

("decisions with regard to classification of prisoners" and

"assignment to particular institutions or units . . . must be

viewed as falling within the discretionary function exception to

the FTCA, if penal institutions are to have the flexibility to

operate"). Accordingly, West has not stated a plausible FTCA

claim concerning the transfer to FCI-Allenwood.

II. Motions (Doc. Nos. 3, 8, and 13)

West has filed a motion to appoint counsel (doc. no. 3).

This court has discretion to deny that motion, unless the

indigent litigant shows that his case presents exceptional

circumstances, such that fundamental unfairness, impinging upon

the right to due process, is likely to result if counsel is not

appointed. See DesRosiers v. Moran,

(1st Cir.

1991). West has demonstrated an ability to file cogent pleadings

and motions. His indigency, incarceration, and inexperience with

civil litigation do not, at this time, threaten to result in

fundamental unfairness. The motion to appoint counsel (doc. no. 3) is denied without prejudice to refiling should exceptional

circumstances arise warranting an appointment. The remaining

motions filed by West (doc. nos. 8, 11, and 13) are denied

without prejudice as premature.

Conclusion

West is granted fourteen days from the date of this order

either to file an amended complaint, or to show cause why this

action should not be dismissed for failure to state a claim upon

which relief can be granted. The motions to appoint counsel

(doc. no. 3), to show exhaustion of administrative remedies (doc.

no. 8), to attempt to settle administrative remedies (doc. no.

11), and for summary judgment (doc. no. 13) are denied without

prejudice.

SO ORDERED.

S/ceven J/McAuliffe United States District Judge

February 4, 2014

cc: Ronald Blue West, pro se

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