Gross v. Nalley et al

Filing 8

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. This matter is dismissed and all relief is denied. Signed by Senior District Judge Sam A. Crow on 6/28/2011. (Mailed to pro se party James Elmer Gross, Sr. by regular mail.) (Attachments: #(1) Unpublished Order) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES ELMER GROSS, SR.,
Plaintiff,
CIVIL ACTION
No. 08-3160-SAC

vs.
MICHAEL K. NALLEY, et al.,

Defendants.

MEMORANDUM AND ORDER
This matter comes before the court on a civil rights action
filed pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) by a prisoner in
federal custody.

Plaintiff proceeds pro se and seeks leave to

proceed in forma pauperis.
Motion to proceed in forma pauperis
By an earlier order, the court directed plaintiff to submit
an initial partial filing fee of $31.50.

Plaintiff filed a

response stating, in part, that he could not pay the fee due to
other filing fee obligations. Having considered the record, the
court will grant leave to proceed in forma pauperis and will
direct collection action pursuant to 28 U.S.C. § 1915(b)(2),
which requires the payment of the full filing fee in installment

payments.
Background
Plaintiff was convicted in the United States District Court
for the District of Maryland on charges including racketeering,
conspiracy to commit racketeering, conspiracy to distribute and
possession with the intent to distribute narcotics, malicious
destruction of a building and vehicle by fire, use of fire to
commit a felony, two counts of witness tampering, and mail
fraud.

He was sentenced to 600 months in prison.

U.S. v.

Gross, 199 Fed. Appx. 219 (4th Cir. 2006).
Here, plaintiff alleges he was incorrectly identified in
the media as an informant, and, as a result, he has encountered
considerable difficulty within the federal prison system.

He

has been incarcerated in a number of federal penal facilities
and has spent much of his incarceration in segregation to
provide a more secure environment.
restrictive

conditions

have

He alleges these more

created

inhumane

conditions

of

confinement that violate the Eighth Amendment.
Plaintiff commenced this action against Bureau of Prisons
Regional

Director

Michael

Nalley

and

an

unknown

regional

director while incarcerated in the United States PenitentiaryBig Sandy, in Inez, Kentucky.

He claims he was transferred to

the United States Penitentiary, Beaumont, Texas, despite his
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verified need for protection from inmates in the population
there, resulting in his placement in protective housing.
appears

to

allege

punishment.

this

placement

resulted

in

an

He

increased

As relief, he seeks an injunction barring future

administrative detention, damages, and the entry of a cease and
desist order to prison officials.
The court takes notice that in late June 2008, plaintiff
filed complaints substantially similar to the present matter in
the U.S. District Court for the Southern District of Indiana,
the U.S. District Court for the Eastern District of Kentucky,
and the U.S. District Court for District of Columbia.

See Gross

v. Lappin, 648 F.Supp.2d 48, 50-51 and n.2 (D.D.C. 2009).
All

of

plaintiff.

those

matters

have

been

resolved

against

the

First, in Gross v. Unknown Director of the Bureau of

Prisons, et al., 2008 WL 2280094 (E.D. Ky. May 30, 2008), the
U.S.

District

Court

for

the

Eastern

District

of

Kentucky

summarily dismissed all claims with prejudice, finding that
plaintiff did not claim that prison officials had failed to
provide

adequate

protection,

but

merely

that

they

had

not

provided such protection in the less restrictive setting he
preferred.
Next, in Gross v. Lappin, et al., 648 F.Supp.2d 48 (D.D.C.
2009), the United States District Court for the District of
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Columbia granted defendants’ motion to dismiss on the ground of
res judicata.

The court noted that plaintiff named the Director

of the BOP as a defendant in both the complaint before it and in
the action filed in the Eastern District of Kentucky, that the
factual allegations in the two cases were nearly identical, and
that

the

U.S.

District

Court

for

the

Kentucky had entered a final judgment.

Eastern

District

of

Gross, 648 F.Supp.2d at

52-53.
Finally, in Gross v. Veach, Case No. 08-254, the U.S.
District Court for the Southern District of Indiana granted
defendants summary judgment, noting the persuasive value of the
decision

entered

in

the

Eastern

District

of

Kentucky,

and

finding that “no viable claim ... has been presented by Gross in
this case.”1
Discussion
The court has examined the record and concludes this matter
should be summarily dismissed.

First, Plaintiff’s claims have

been thoroughly considered in the related cases.
review

is

“intended

barred
to

by

relieve

principles
parties

of

of

res

the

Any further

judicata,

cost

and

which

is

vexation

of

multiple lawsuits, conserve judicial resources, prevent incon-

1

A copy of this unpublished order is attached.
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sistent decisions, and encourage reliance on adjudication.”
Satsky v. Paramount Communications, Inc., 7 F.3d 1464, 1467
(10th Cir. 1993).

There can be no doubt that plaintiff’s claims

have been considered and rejected on the merits.

“‘[A] party

who has had a full opportunity to present a contention in court
ordinarily should be denied permission to assert it on some
subsequent occasion.’”

See Park Lake Res. L.L.C. v. USDA, 378

F.3d 1132, 1135-36 (10th Cir. 2004)(citation omitted).
Moreover, even if this matter were to be considered on its
merits, the court agrees with the conclusion that plaintiff
states no claim for relief.
First, plaintiff acknowledges that he requires protection
from inmates, particularly inmates from the Baltimore, Maryland,
area, who believe he assisted the government.
Prison officials have a duty under the Eighth Amendment to
to protect prisoners from violence at the hands of other
inmates.

Farmer v. Brennan, 511 U.S. 825, 833 (1994).

Where

a prisoner is at risk of violence from other inmates,
administrative segregation serves a legitimate penological
interest.

Estate of DiMarco v. Wyoming Department of

Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007)(promoting the
safety of an inmate is a legitimate factor in the decision to
segregate that inmate).

While plaintiff would prefer a set5

ting in which he might function in general population, he has
no right to the housing assignment he prefers.

See Hewitt v.

Helms, 459 U.S. 460, 468 (1983)(“transfer of an inmate to less
amenable and more restrictive quarters for nonpunitive reasons
is well within the terms of confinement ordinarily contemplated by a prison sentence”), overruled on other grounds by
Sandin v. Conner, 515 U.S. 472 (1995).

In any event, given

the mobility of the federal prison population, it surely would
be impracticable to ask prison officials to identify a facility in which the plaintiff’s need for security could be
matched with a population that has no inmates from the
Baltimore area.

Thus, plaintiff’s placement in segregation,

while restrictive, affords the necessary flexibility to prison
officials while providing plaintiff the additional protection
he requires.

Such placement does not violate the Eighth

Amendment.
Finally, it is noteworthy that plaintiff has not alleged
that he suffered any physical harm.

Thus, plaintiff’s claim

arising under the Eighth Amendment is barred by the Prison
Litigation Reform Act, which includes the provision that “[n]o
federal civil action may be brought by a prisoner confined in
a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
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showing of physical injury.”

42 U.S.C. § 1997e(e).

IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion
for leave to proceed in forma pauperis (Doc. 2) is granted.
Collection action shall commence and continue pursuant to 28
U.S.C. § 1915(b)(2) until plaintiff satisfies the filing fee
of $350.00.
IT IS FURTHER ORDERED this matter is dismissed and all
relief is denied.
Copies of this order shall be transmitted to the
plaintiff and to the finance office of the facility where he
is incarcerated.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 28th day of June, 2011.

S/ Sam A. Crow
SAM A. CROW
United States Senior District Judge

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