Davidson et al v. Federal Bureau of Prisons
MEMORANDUM OPINION & ORDER: 1) 32 MOTION to Strike is DENIED. 2) 20 MOTION to Dismiss is GRANTED. 3) 1 Complaint is DISMISSED WITH PREJUDICE w respect to all matters asserted therein. 4) 46 Motion to Amend is DENIED. 5) Court will enter judgment. 6) This matter is STRICKEN from the active docket of the Court. Signed by Judge Joseph M. Hood on 3/31/2017.(SCD)cc: COR,Pro Se Plas(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CLIFTON B. DAVIDSON and
ALFRED L. JENNINGS,
FEDERAL BUREAU OF PRISONS,
Civil No. 5: 15-351-JMH
This matter is before the Court upon the motion of the Bureau
of Prisons (“BOP”) to dismiss the complaint, or in the alternative,
for summary judgment.
Plaintiffs Clifton Davidson and
Alfred Jennings have filed their response to the motion, to which
the BOP has replied.
[R. 34, 38]
The plaintiffs also filed a
motion to strike the declaration of Alex White, a request which
has been fully briefed.
[R. 32, 37, 39]
The plaintiffs separately
filed a motion to amend their complaint, and the parties have
concluded their briefing on this motion as well.
[R. 46, 49, 51]
These matters are therefore ripe for decision.
When they filed their complaint in this action, Davidson and
Jennings were both prisoners at the Federal Medical Center in
released from federal custody in October 2016.
gravamen of their complaint is that the BOP poorly administers or
misappropriates funds that are supposed to be used to benefit
[R. 1 at ¶¶10-83]
They also assert two satellite claims
arising from their dissatisfaction with the BOP’s handling of their
inmate grievances on the subject [R. 1 at ¶¶84-153], as well as
the BOP’s response to one of seven requests for documents Davidson
made under the Freedom of Information Act, 5 U.S.C. § 552a (“FOIA”)
[R. 1 at ¶¶ 154-164].
The plaintiffs seek monetary damages and
costs, as well as declaratory and injunctive relief.
[R. 1 at 25-
Davidson and Jennings assert that as federal inmates they are
beneficiaries of two trust funds administered by the BOP:
“Deposit Fund,” which holds money deposited for use by individual
inmates (basically, a “checking account” for each inmate), and the
“Trust Fund,” which, among other things, holds proceeds from the
sale of items sold in the prison’s commissary.
See BOP Program
Statement 4500.11, CN-1 Ch. 1, § 1.1 (Dec. 16, 2016).
involves only the latter, commonly referred to as the Commissary
The plaintiffs allege that these funds are used to pay the
salaries of certain prison guards and compensation to some of the
inmates working prison jobs; to buy recreational, entertainment,
and computer equipment in the facility for use by both guards and
interior improvements to the facility.
However, plaintiffs complain that prison guards regularly
receive pay increases while inmate pay has remained stagnant for
decades, and starting in December 2014, the regular and “bonus”
pay for inmates was reduced significantly.
They also state that
prices for goods in the commissary continue to increase; the BOP
does not take care of the equipment purchased for inmates and
exclusively for the benefit of prison guards.
and Davidson allege that prison wardens sometimes transfer trust
funds from their institution to other facilities or regions in an
effort to curry favor and increase their chances at promotion.
[R. 1 at 3-10, 18-19]
The plaintiffs assert several claims related to the trust
separately assert that the reduction in their compensation from
their inmate jobs violates their due process rights.
Count Four they collectively assert that the BOP violates its
duties as a trustee by using trust funds mostly to benefit staff
members instead of inmates. Third, in Counts One and Five Jennings
and Davidson each contend that the transfer of funds to other
prisons is an abuse of trustee discretion.
[R. 1 at p. 20-23]
Upset about this state of affairs, each plaintiff filed
separate inmate grievances about the reduction in their pay and
administrative remedy program requires inmates to first attempt to
resolve their concerns informally, but the plaintiffs felt that
prison officials only gave them the runaround.
Jennings further complain that their formal grievances and appeals
were not received until several weeks after they sent them for
filing, were improperly rejected as untimely or for failure to
addressed by the BOP within the time frames established by its own
circumstances inmates incur extra costs for postage and office
supplies as well as uncertainty regarding when they may proceed to
[R. 1 at p. 10-18]
In Counts Three and Seven, Jennings
and Davidson contend that the BOP’s failure to adhere to the
requirements of the inmate grievance process violates their due
[R. 1 at p. 22, 23-24]
Davidson also filed a request under the Freedom of Information
Act for documents detailing how the BOP uses these funds.
he states that he received almost all of what he asked for, he
found incredible the BOP’s response that no documents exist to
confirm his belief that inmate trust funds were used to improve
the dining area used by staff at FMC - Lexington.
received a response.
[R. 1 at 19-20]
In Count Eight, Davidson
contends that the BOP violated FOIA by failing to produce documents
he believes exist, but the BOP has stated do not.
[R. 1 at p. 24-
Because the plaintiffs mention it in their response to the
summary judgment motion [R. 34 at 6], the Court pauses here to
address the one-sentence suggestion in their complaint that they
wished to have this matter proceed as a class action.
[R. 1 at
In their complaint, the plaintiffs did not attempt to define
the scope of the class or the claims encompassed within it, allege
or argue that they satisfy the requirements for class certification
set forth in Federal Rule of Civil Procedure 23(a)(1)-(4), or
identify the type of class action appropriate under Rule 23(b)(1)(3).
A complaint that fails to satisfy either one of these
substantive criteria does not warrant class certification.
Wal–Mart v. Dukes, 564 U.S. 338, 350 (2011) (“Rule 23 does not set
forth a mere pleading standard.”); Newsom v. Norris, 888 F. 2d
371, 381 (6th Cir. 1989).
As a procedural matter, they also never
filed a formal motion for such certification.
F. App’x 561, 563 (6th Cir. 2003).
Moore v. Curtis, 68
This matter could not have
proceeded as a class action in any event: pro se plaintiffs are
not able to adequately and fairly represent the class. Cf. Palasty
v. Hawk, 15 F. App’x 197, 200 (6th Cir. 2001).
The Court therefore
limits its discussion to the claims asserted by Davidson and
In its motion for summary judgment, the BOP contends that
neither plaintiff properly exhausted his administrative remedies
with respect to his claims, whether under the BOP’s internal Inmate
Grievance Program or under FOIA.
[R. 20-1 at 3-8; 9-10]
notes that, as a federal agency, it is entitled to sovereign
immunity from damages claims [R. 20-1 at 8-9] and that prisoners
have no constitutional right to either a prison job or any wages
for their work [R. 20-1 at 9].
Finally, the BOP requests summary
judgment on Davidson’s FOIA claim because it conducted a reasonable
search for the records he sought and discovered none.
[R. 20-1 at
For their part, Jennings and Davidson assert pursuant to
Federal Rule of Civil Procedure 56(d) that discovery is necessary
before they can respond to the BOP’s motion.
They also dispute
the BOP’s characterization of their claims and deny that they have
sought monetary relief, while nonetheless contending the BOP has
waived its immunity to a damages claim.
[R. 34 at 2-7; 21-34]
administrative remedies, and that any untimeliness or irregularity
in the processing of their inmate grievances was caused by the
BOP’s failure to adhere to its own regulations.
[R. 34 at 7-20;
Finally, Davidson asserts that the FOIA search must have
been unreasonable because a reasonable search would necessarily
have revealed the documents he is certain exist.
[R. 34 at 45-
Before addressing the substance of the BOP’s motion, the Court
must first resolve two preliminary matters.
First, the parties
dispute the nature of Jennings and Davidson’s claims and the relief
The BOP characterizes Counts One, Two, Four, and Five
of the plaintiffs’ complaint as asserting due process claims
arising out of a reduction in their pay; and Counts Five, Six, and
Seven as due process claims related to the BOP’s administration of
its inmate grievance program.
It also notes Davidson’s FOIA claim
in Count Eight, but makes no attempt to characterize Count Three.
[R. 20-1 at 2-3]
For their part, the plaintiffs suggest that their
only due process claim relates to the inmate grievance program,
and that their “claims brought regarding the Trust Fund (and
including pay from the Trust Fund) are brought under trust law and
not as a strictly-speaking Constitutional claim.”
[R. 34 at 4-5,
complaint is extensive, detailed, and for the most part, fairly
characterizes the claims Jennings and Davidson assert in their
As noted by the Court above, five of the counts are
directly related to the operation of the trust fund and/or their
Counts Two and Six
- expressly titled “Violation of
Due Process as to Jennings (Pay)” and “Violation of Due Process as
plaintiffs possessed a “protected property interest in his pay”
and that the “BOP has violated the due process rights” of the
plaintiffs by reducing their pay.
These claims are also devoid of
any suggestion that the BOP’s conduct violated its duties as a
trustee, a type of claim the plaintiffs clearly and expressly
assert in other counts.
[R. 1 at 20-21, 23]
The foregoing refutes
the plaintiffs’ assertion that these counts assert claims under
trust law and the BOP’s assertion that Count Six relates to the
inmate grievance program.
Unlike those two counts, Count Four is entitled “Breach of
Trust Fund Duties (Both Plaintiffs),” refers to the law of trusts,
alleges that the trust funds are being used to benefit BOP staff
violation of the discretion afforded to the trustee.
[R. 1 at 22-
This claim arises solely under trust law.
plaintiffs allege that “the taking of his pay was not a measure in
accord with due process ...”
However, each count is titled as
expressly identified as due process claims, and they conclude with
the assertion that the BOP actions are “a breach of the trust and
an abuse of [trustee] discretion ...”
[R. 1 at p. 20-21, 23]
light of the express labelling chosen by the plaintiffs and their
focus on the alleged breach of trustee duties, these counts assert
claims arising, if at all, under trust law.
The parties appear to be in agreement that Counts Three and
Seven assert due process claims regarding the BOP’s operation of
the inmate grievance program, and that Count Eight encapsulates
Davidson’s FOIA claim.
The nature of these claims is readily
apparent from the complaint itself.
[R. 1 at p. 22, 23-25]
As a separate matter, although the plaintiffs’ protest that
they “do not seek money damages from anyone” in response to the
BOP’s assertion of sovereign immunity [R. 34 at 4-5], the complaint
contradicts that assertion, as it expressly includes a demand for
“[a]ctual and compensatory damages to both plaintiffs ...” [R. 1
necessarily implicate the federal government’s sovereign immunity.
These matters are discussed more fully below.
Having established the nature of the claims Davidson and
Jennings actually assert, the Court must next address Davidson’s
contention that he needs discovery (albeit only with respect to
his FOIA claim) before the Court decides the BOP’s motion for
[R. 34 at 2-3]
The Federal Rules of Civil
Procedure permit a party resisting a summary judgment motion to
request that the Court defer a decision on the motion if she can
demonstrate, by affidavit or declaration, that she needs limited
opposition to the motion.
Fed. R. Civ. P. 56(d).
Procedurally, the Rule requires the nonmovant to file an
affidavit or declaration to assert and explain that it needs
discovery into his response to the BOP’s summary judgment motion,
but he filed no affidavit or declaration in support of it.
plaintiffs filed numerous affidavits in support of their claims
[R. 34-5], but none of those - including Davidson’s fourteen page
affidavit [R. 34-5 at 11-24] - assert the need for additional
declaration which “indicate[s] to the district court [the party’s]
need for discovery, what material facts it hopes to uncover, and
why it has not previously discovered the information,” Cacevic v.
City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000), he has
failed to properly invoke Rule 56(d).
Substantively, Davidson bears the burden of demonstrating why
discovery is necessary.
Summers v. Leis, 368 F.3d 881, 887 (6th
The nonmovant must do more than make “general and
conclusory statements ... regarding the need for more discovery”;
instead, she must “show how an extension of time would have allowed
information related to the truth or falsity of the [document] to
Ball v. Union Carbide Corp., 385 F.3d 713, 720
(6th Cir. 2004) (citing Ironside v. Simi Valley Hosp., 188 F.3d
350, 354 (6th Cir. 1999)).
Here, the BOP has moved to dismiss Davidson’s FOIA claim on
the grounds that he failed to fully and properly exhaust it and
because its search for documents was reasonable.
[R. 20-1 at 7-
Davidson appears to seek “records” – which he does not
clearly define by date range, scope, source, or subject matter that he contends are required to be kept by unidentified BOP
budgeting policies, and which the BOP has previously stated it was
unable to locate.
Even if these documents do exist, they would
not be required for Davidson to respond to the BOP’s motion,
because the contents of these documents would not make it any more
or less likely that he exhausted his administrative remedies under
FOIA or that the BOP’s search conducted at his behest was not
And a continuance for discovery is not necessary to
respond to purely legal arguments where the controlling facts are
not in dispute. Cf. Teck Metals, Ltd. v. Certain Underwriters at
Lloyd’s, London, 735 F.Supp.2d 1246, 1256 (E.D. Wash. 2010).
Court may therefore proceed to consider the substance of the BOP’s
consideration of the balance of the plaintiffs’ claims.
The Court must treat the non-jurisdictional aspects of the
BOP’s motion to dismiss the complaint as a motion for summary
judgment under Rule 56 because it has attached and relied upon
documents and declarations extrinsic to the pleadings in support
Fed. R. Civ. P. 12(d); Wysocki v. Int’l Bus. Mach. Corp.,
607 F. 3d 1102, 1104 (6th Cir. 2010).
A motion under Rule 56
challenges the viability of the another party’s claim by asserting
that at least one essential element of that claim is not supported
by legally-sufficient evidence.
Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 324-25 (1986).
A party moving for
summary judgment must establish that even viewing the record in
the light most favorable to the nonmovant, there is no genuine
dispute as to any material fact and that she is entitled to a
judgment as a matter of law.
Loyd v. St. Joseph Mercy Oakland,
766 F. 3d 580, 588 (6th Cir. 2014).
The moving party does not need her own evidence to support
this assertion, but need only point to the absence of evidence to
support the claim.
Turner v. City of Taylor, 412 F. 3d 629, 638
(6th Cir. 2005). The responding party cannot rely upon allegations
affidavits, depositions, and written discovery which demonstrates
that a factual question remain for trial.
Hunley v. DuPont Auto,
341 F. 3d 491, 496 (6th Cir. 2003); United States v. WRW Corp.,
986 F. 2d 138, 143 (6th Cir. 1993) (“A trial court is not required
to speculate on which portion of the record the non-moving party
relies, nor is there an obligation to ‘wade through’ the record
for specific facts.”).
The court reviews all of the evidence presented by the parties
in a light most favorable to the responding party, with the benefit
of any reasonable factual inferences which can be drawn in his
Harbin-Bey v. Rutter, 420 F. 3d 571, 575 (6th Cir. 2005).
If the responding party’s allegations are so clearly contradicted
by the record that no reasonable jury could adopt them, the court
need not accept them when determining whether summary judgment is
Scott v. Harris, 550 U.S. 372, 380 (2007).
must grant summary judgment if the evidence would not support a
jury verdict for the responding party with respect to at least one
essential element of his claim.
477 U.S. 242, 251 (1986).
Anderson v. Liberty Lobby, Inc.,
If the applicable substantive law
requires the responding party to meet a higher burden of proof,
his evidence must be sufficient to sustain a jury’s verdict in his
favor in light of that heightened burden of proof at trial.
v. Hollenback, 113 F. 3d 639, 642 (6th Cir. 1997); Moore, Owen,
Thomas & Co. v. Coffey, 992 F. 2d 1439, 1444 (6th Cir. 1993).
The Court first addresses the BOP’s assertion that Jennings
and Davidson failed to exhaust their administrative remedies with
respect to any of their claims, and hence they must be dismissed.
[R. 20-1 at 3-8]
Federal law requires a prisoner challenging the
conditions of his confinement pursuant to 42 U.S.C. 1983, Bivens,
administrative remedies before filing suit in federal court.
U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532 (2002);
Napier v. Laurel County, 636 F.3d 218, 220 (6th Cir. 2011).
that are not fully and properly exhausted before suit is filed
must be dismissed.
Jones v. Bock, 549 U.S. 199, 211 (2007) (“There
is no question that exhaustion is mandatory under the PLRA and
that unexhausted claims cannot be brought in court.”).
The prisoner must exhaust those remedies “properly,” meaning
in full compliance with the agency’s deadlines and other critical
Woodford v. Ngo, 548 U.S. 81, 90 (2006); Scott
v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009).
If a prisoner’s
grievance or appeal is rejected on procedural grounds and he is
afforded the opportunity to cure the defect that led to the
rejection, the prisoner must avail himself of that opportunity: he
may not abandon further efforts at compliance.
Vidor, 199 F.3d 305, 309 (6th Cir. 1999) (“An inmate cannot simply
fail to file a grievance or abandon the process before completion
and claim that he has exhausted his remedies or that it is futile
for him to do so.”); Jernigan v. Stuchell, 304 F.3d 1030, 1032-33
(10th Cir. 2002) (inmate failed to exhaust administrative remedies
when he failed to cure the deficiency which led the prison to
reject grievance appeal).
Jennings filed only one grievance related to this case.
February 18, 2015, Jennings filed a grievance with the warden
complaining that his pay had been cut during the prior fall and
requesting return to his prior pay grade.
Jennings attached to
his grievance a copy of a December 22, 2014, e-mail that he had
sent to an assistant warden complaining about the reduction in his
[R. 34-3 at 21-22]
Jennings grievance was assigned number
811241, and on February 20, 2015, was rejected on the ground that
it was filed more than twenty days after the events complained of.
[R. 34-3 at 23]
On March 10, 2015, Jennings appealed to the BOP’s Mid-Atlantic
Regional Office (“MARO”).
[R. 34-3 at 24-26]
was rejected by MARO on March 18, 2015, because it was not received
until March 17, 2015, five days after the time permitted to appeal
had passed, and because he had not included copies of his formal
grievance and the warden’s response.
The rejection notice advised
Jennings that he could submit a note from staff to explain the
untimely filing to cure the deficiency that led to the rejection.
[R. 34-3 at 27]
Jennings chose not to do so, instead challenging MARO’s
rejection on appeal to the Central Office on March 29, 2015.
34-3 at 28-29]
The Central Office rejected the appeal on May 18,
2015, concluding that the warden and MARO properly rejected his
grievance and the appeal as untimely.
[R. 34-3 at 30]
Having reviewed the documents and arguments submitted by the
parties, the Court concludes that Jennings did not properly exhaust
his administrative remedies with respect to any of the four claims
he asserts in Counts One through Four of the complaint.
entirely unrelated to the subject matter of the one grievance
Jennings filed with the warden.
To properly exhaust a claim, the
inmate must identify the issue with sufficient particularity to
permit prison officials a reasonable opportunity to address it.
Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004).
cases, it is enough to identify the facts or events which have
Conversely, an inmate may not assert a claim
wholly distinct, factually or legally, from the one presented to
prison officials during the grievance process.
Pruitt v. Holland,
No. 10-CV-111-HRW, 2011 WL 13653, at *4-6 (E.D. Ky. Jan. 4, 2011)
In his only grievance, Jennings complained that his pay had
been improperly reduced [R. 34-3 at 21-22], a complaint directly
related to his claim in Count Two that such reduction violated his
due process rights [R. 1 at 21].
But his grievance did not set
forth, or even touch upon, the other claims he asserts in this
In Count Four, Jennings contends that trust funds are used
to benefit staff instead of inmates, a wholly distinct claim based
administration of the inmate grievance process, something not
mentioned in the one grievance he filed with the warden.
did complain about the warden’s rejection of his grievance, but
only did so for the first time in his appeal to MARO.
He did not
administration of the grievance process, and an inmate may not
skip steps in the grievance process by raising a new issue for the
first time in an appeal to the regional or central offices.
C.F.R. § 542.15(b)(2) (“An inmate may not raise in an Appeal issues
not raised in the lower level filings.”).
In Count One, Jennings
argues that the BOP abuses its discretion as a trustee if it
transfers funds to other prisons, also a matter not mentioned in
his February 2015 grievance.
Because Jennings’ claims in Counts
One, Three and Four are wholly distinct from the subject of his
grievance, they are unexhausted and must be dismissed. 1
Even if this were not so, Jennings sought injunctive relief in
these claims, a request rendered moot by his release from BOP
Jennings’ claim in Count Two related to his inmate pay was
plainly covered by the grievance he filed, but the BOP acted
properly in rejecting it as untimely at both the institutional and
In that grievance, Jennings challenged the
reduction in his inmate pay, and specifically pointed to an e-mail
he sent on December 22, 2014, complaining to an assistant warden
about the pay cut.
[R. 34-3 at 21-22]
Jennings later made a
passing argument that another statement he made in his grievance,
that “continuing every month, my pay has been cut ...,” suggested
that events had occurred within the twenty-day filing period.
having referenced a discrete pay cut in December, this statement
is fairly viewed as merely referring to the ongoing effects of the
policy change which occurred in 2014.
His grievance, filed in
mid-February 2015, was plainly filed well beyond the twenty days
rejected it as untimely.
His appeal to MARO was also untimely.
The warden rejected
Jennings’ grievance on February 20, 2015, and his appeal therefore
had to be received by MARO within twenty days, by March 12, 2015.
28 C.F.R. § 542.15(a). Jennings waited eighteen days - until March
custody in October 2016. [R. 45]; Holson v. Good, 579 F. App’x
363, 366 (6th Cir. 2014); Nunez v. FCI-Elkton, 32 F. App’x 724,
726 (6th Cir. 2002).
10, 2015, two days before the deadline - before he signed his
MARO did not receive it until March 17, 2015, and
therefore properly rejected it as untimely.
[R. 34-3 at 25-27]
grievances and appeals should not take so long to be received.
But inmates are well aware that mail sent from a prison spends
much more time in transit than ordinary mail because it has to be
destination, and then passed through security screening before it
is finally received.
It is this fact which at least partially
animated the adoption of the “prison mailbox” rule decades ago,
Houston v. Lack, 487 U.S. 266, 271-72 (1988), and the BOP’s filing
and appeal deadlines “have been made deliberately long to allow
sufficient mail time.” BOP Program Statement 1330.18, § 9(a) (Jan.
Indeed, the federal prison where plaintiffs reside is
a mere six miles from the federal courthouse in Lexington, but a
review of the docket in this case readily shows that mail sent
from that facility routinely takes two to four days to be received.
It is unsurprising that Jennings appeal to MARO, which is located
in Maryland, should take much longer than that.
appeal was untimely and he refused the opportunity to address that
deficiency, the claim asserted in Count Two is likewise unexhausted
and must be dismissed. Hartsfield, 199 F.3d at 309.
For his part, Davidson filed five inmate grievances related
to the issues he presents in this case.
In the first, Davidson
signed a grievance raising concerns regarding the changes to inmate
pay and the processing of grievances on December 31, 2014.
BOP assigned number 806609 to that grievance, but promptly rejected
it because Davidson had attached too many continuation pages.
20-2 at 2; R. 34-2 at 1-3, 5]
On January 22, 2015, Davidson resubmitted the grievance with
only a single continuation page [R. 34-2 at 6], and the BOP
assigned number 808079 to it.
On January 27, 2015, the warden
granted that grievance insofar as Davidson sought information
about the changes to inmate pay, but directed him to appeal if he
was not satisfied with the response.
[R. 20-2 at 24-27]
Davidson appears to have mailed his appeal to MARO on February
3, 2015 [R. 34-2 at 12-14], but the regional office rejected it on
March 10, 2015, on the grounds that Davidson had not included a
copy of the grievance he filed with the warden or the warden’s
[R. 34-2 at 15]
Davidson re-filed his appeal a week
In its motion, the BOP asserts that Davidson’s appeal was filed
on March 10th and that MARO rejected it as untimely. [R. 20-1 at
4; R. 20-2 at 2] These assertions are incorrect.
First, the BOP’s “generalized retrieval” page - which provides
limited information about the subject matter of the grievance (but
later, contending that the documents which MARO had indicated were
missing were actually in his original appeal.
[R. 34-2 at 16]
MARO accepted Davidson’s re-submitted appeal, and denied it on May
[R. 34-2 at 18]
Because MARO had not responded to his regional appeal by its
self-identified April 22, 2015 deadline to do so [R. 34-2 at 17],
and before MARO issued its May 4 decision, Davidson sent an appeal
to the Central Office on May 1, 2015.
[R. 34-2 at 19-20]
Davidson’s appeal on June 16, 2015 (six weeks after he sent it),
rejected the appeal on the ground that he had not included a copy
of either his appeal to MARO or the regional office’s response to
it, and directed him to resubmit the appeal within fifteen days
with the required documentation. 3
[R. 34-2 at 21]
does not include a copy of the grievance itself) and the dates of
its filing and disposition - shows that MARO received Davidson’s
appeal on March 4, 2015, not March 10, 2015. [R. 20-2 at 22] This
fact is confirmed by the file-stamped copy of the appeal filed by
Davidson. [R. 34-2 at 13]
Second, the “generalized retrieval” page submitted by the BOP will
show that a grievance or appeal was rejected, but that page does
not provide any information about why that occurred. The BOP does
not explain the basis for its assertion that the appeal was
rejected as untimely, the document cited for that assertion does
not support it, and the document filed by Davidson demonstrates
otherwise. [R. 34-2 at 15]
The BOP asserts that the Central Office appeal was rejected as
untimely [R. 20-2 at 3], but as before, the SENTRY retrieval
Davidson has attached a letter to the Central Office dated
July 21, 2015, which stated that he was re-sending the documents
required to cure the deficiencies which led to the rejection of
[R. 34-2 at 23]
Notably, however, the BOP’s SENTRY
report does not indicate that the Central Office received this or
[R. 20-2 at 22-23], and Davidson does not indicate that he pursued
the matter any further in the face of silence from the Central
Office [R. 34 at 13].
Davidson’s second grievance, signed on April 22, 2015 and
formally received by the warden on May 6, 2015, requested that (1)
trust funds be used to purchase higher quality and more durable
exercise equipment, (2) telephones for inmate use be repaired more
quickly, and (3) a committee be established.
assigned grievance number 820130.
The grievance was
[R. 34-2 at 24]
responded on May 22, 2015, by providing information regarding the
purchase of new exercise equipment and the administration of the
trust fund, but denied the grievance for administrative purposes.
[R. 34-2 at 26]
Davidson filed an appeal to MARO on June 1, 2015;
MARO denied the appeal as moot on June 25, 2015, in light of the
[R. 20-2 at 22] does not support that assertion and it is
contradicted by the actual rejection notice filed by Davidson
[R. 34-2 at 21].
purchase of new equipment and a work order to repair broken
[R. 34-2 at 27-28; R. 34-3 at 1]
Davidson has included a cover letter and appeal to the Central
Office dated July 8, 2015.
[R. 34-3 at 2-4]
However, he indicates
that the Postal Service’s Mail Recovery Center in Atlanta, Georgia
returned them to him on August 7, 2015, without an explanation for
their non-delivery, and has included an envelope from the Mail
[R. 34 at 14; R. 34-3 at 5]
that he then sent all of these materials to the Central Office
with an explanation for the delay on August 8, 2015.
[R. 34-3 at
The Central Office received these materials two weeks later,
untimely. However, the Central Office directed Davidson to provide
staff verification that the delay was not his fault.
24, 2015, Davidson states that he sent the Central Office a
memorandum by a BOP staff member who indicated that the mailing
labels on the envelope returned by the Postal Service appear to
have been “severely blackened.”
[R. 34-3 at 7-10]
indicates that he never heard back from the Central Office.
34 at 14]
The BOP’s SENTRY database does not reflect that it
received this letter or any other filings from Davidson related to
[R. 20-2 at 22-23]
complaining that inmate pay had remained unchanged since 1990 and
requesting a fifteen percent pay increase for all inmates.
grievance was assigned number 827968, and the warden denied it on
July 16, 2015.
[R. 34-3 at 12, 14]
denied the appeal on August 28, 2015.
Davidson appealed, but MARO
[R. 34-3 at 17-18]
his other grievances, Davidson asserts that he promptly appealed
to the Central Office on September 7, 2015.
3 at 19-20]
[R. 34 at 16; R. 34-
Davidson indicates that he never received a response,
but was apparently not sufficiently concerned with the Central
Office’s silence to enquire further.
appeal to the Central Office.
The BOP has no record of any
[R. 20-2 at 22-23]
It is worth collecting in one place the factual allegations
and implications that Davidson makes to support his assertion that
he fully exhausted these first three administrative remedies:
With respect to his first grievance, Davidson asserts
that he included copies of his original appeal and the
warden’s denial of it in his February 3, 2015, appeal to
MARO, but MARO rejected the appeal either because it
lost the documents or because it lied about their
He further asserts that he resubmitted his
appeal to the Central Office on July 21, 2015, even
though the BOP has no record of having received it.
With respect to his second grievance, Davidson asserts
that his original appeal to the Central Office was never
delivered by the Postal Service.
He further asserts
that he resubmitted his appeal to the Central Office in
September 2015, but the Central Office again has no
record of receiving it.
With respect to his third grievance, Davidson asserts
that he appealed to the Central Office in September 2015;
as before, the BOP has no record of receiving it.
The Court would likely accept at face value a prisoner’s assertion
that the BOP lost a single grievance or appeal: no system is
flawless or free from delays or errors in administration, and the
BOP’s inmate grievance system, with which the Court is abundantly
familiar, is no exception.
However, the same prisoner’s assertion
that the BOP had simply lost not one, but two, grievances or
The BOP processes a large number of administrative
remedies, far more than many federal agencies, and has effective
procedures in place to docket them, even if the sheer volume of
inmate grievances causes significant delays in response times.
Here, Davidson claims that the BOP lost not one, not two, but
all three of his Central Office appeals.
And while he has
previously and keenly voiced his frustration with the delays he
experienced when MARO and the Central Office processed his appeals,
acknowledgement letter from the Central Office after he sent these
To put it mildly, these assertions collectively strain
However, credibility determinations are generally not made in
the context of a summary judgment motion.
It is true that a court
may grant summary judgment if the responding party’s allegations
are so clearly contradicted by the record that no reasonable jury
could adopt them.
Scott v. Harris, 550 U.S. 372, 380 (2007).
Here, Davidson has supported his assertions with copies of letters
that he claims were sent to the Central Office to perfect his
This places the BOP in the unenviable position of having
to prove a negative - that Davidson never sent them.
The best it
can muster is to point out that Davidson has not provided any
documentary evidence that they were sent such as certified mail
demonstrates that they were never received.
While the matter
presents a close question, the Court believes that there is not
sufficiently clear evidence in the record at this juncture to
determinatively conclude as a matter of law that Davidson failed
There is another issue with respect to exhaustion.
complaint and in his response, Davidson notes that he filed a
fourth and fifth grievance related to the BOP’s inmate grievance
[R. 1 at 15, 17]
These were not mentioned in the BOP’s
motion nor addressed in its reply, but the Court will discuss them
On May 15, 2015, Davidson filed a grievance directly with
MARO expressing his dissatisfaction with that office’s handling of
his regional appeals.
In doing so, he invoked an exception to the
general rule that inmate grievances must generally be filed first
with the institution where the inmate is confined.
§ 542.14(d)(5) provides that “... formal administrative remedy
requests regarding initial decisions that did not originate with
the Warden, or his/her staff, may be initially filed with the
Bureau office which made the original decision, and appealed
directly to the General Counsel.”
Davidson states that MARO rejected the filing and directed
him to re-file the grievance with the Central Office.
alleges that he did so, again referring to subsection (d)(5),
Davidson indicates that he received no response. On July 27, 2015,
Davidson also filed a separate grievance directly with the Central
Office complaining of its handling of his appeals; he indicates
that he received no response.
[R. 34 at 18-19; R. 34-3 at 31-37]
The Court agrees with Davidson that under the regulation, it
was permissible for him to lodge his complaints regarding the
handling of his appeals by MARO and the Central Office directly
with those offices.
In each instance, he was complaining of a
confined, and the terms of Section 542.14(d)(5) contemplate an
appeal being filed with the BOP office that made the decision being
Cf. Rush v. Samuels, 82 F. Supp. 3d 470, 481 (D.D.C.
2015) (citing Sines v. Caley, 563 F. App’x 631, 632 (10th Cir.
Although this subsection appears to have been added in
June 2010, the applicable internal policy document, BOP Program
Statement 1330.18, was last revised in January 2014, and still
does not reflect the change in the law, likely causing staff at
MARO and the Central Office to improperly reject or disregard his
Based upon the record before it, it appears that the
issues raised in these grievances have been properly exhausted.
The final issue with respect to exhaustion is not an inmate
grievance, but Davidson’s request for documents under FOIA.
February 17, 2015, Davidson sent a letter to the BOP’s FOIA Section
in Washington, D.C., requesting seven categories of information.
Davidson’s sixth request, although presented in the form of an
interrogatory, sought information that would indicate “whether any
inmate trust funds are used to [fund] the officer’s mess here at
FMC/ADX Lexington.” [R. 34-3 at 38-39] The FOIA Section responded
by letter dated April 23, 2015, indicating that it had located 33
pages of documents responsive to his requests.
response noted that:
BOP staff searched for responsive records to item number
6 of your request, through the stored directories from
the Correctional Programs Division, Trust Fund Branch,
and Sallyport, where these records would be maintained
or stored, no records were found. There are no other
locations where this record would be stored that would
likely lead to the discovery of the record with a
reasonable amount of effort.
The letter advised him that if he wished to appeal, he must do so
Department of Justice, Office of Information Policy (“OIP”) at the
[R. 34-3 at 45-46]
The OIP indicates that it received an appeal from Davidson on
September 3, 2015, long after the deadline to appeal had passed.
It was therefore denied as untimely pursuant to 28 C.F.R. § 16.8(a)
[R. 20-3 at 2-3, 9-11]
As he did with respect to his
three Central Office appeals, Davidson alleges that he had mailed
a timely appeal to OIP on May 31, 2015, but that for the fourth
time, a federal agency inexplicably failed to receive it. Davidson
further states that when he hadn’t heard anything from OIP for
several months, on September 1, 2015, he sent them a letter
inquiring about his appeal along with a copy of original appeal.
[R. 34 at 19-20; R. 34-4 at 1-2]
As this document was the first
that OIP had received from Davidson, it treated it as his appeal
and denied as untimely.
Apart from asserting as a factual matter that he mailed a
timely FOIA appeal, Davidson makes no legal argument in opposition
to the BOP’s motion, and does not contest the affidavit of OIP’s
officer that it never received his appeal.
The plaintiff in a
FOIA action bears the burden of demonstrating not merely that he
Tunchez v. U.S. Dep’t of Justice, 715 F. Supp. 2d 49, 53 (D.D.C.
In this regard, the Supreme Court has emphasized that in
official conduct a presumption of legitimacy.
U.S. Dep’t of State
v. Ray, 502 U.S. 164, 179 (1991)).
receipt merely by providing the Court with a copy of an appeal
letter he claims to have mailed.
Instead, more specific and
detailed information is required, such as a certified mail receipt
Carter v. United States, No. 1: 16-CV-530, 2016 WL
4382725, at * 4 (S.D. Ohio Aug. 16, 2016).
Without such evidence
of actual receipt by the agency, a FOIA plaintiff fails to rebut
presumptively-accurate government records indicating that no such
documents were received, and the agency has satisfied its burden
to demonstrate that the requester failed to exhaust administrative
Id.; see also Willis v. U.S. Dept. of Justice, 581 F.
Supp. 2d 57, 68 (D.D.C. 2008) (granting summary judgment where
insufficient to overcome presumption of good faith that attached
to official’s affidavit that no request was received).
will therefore dismiss Davidson’s FOIA claim for failure to exhaust
Independent of its prior determinations regarding exhaustion
of administrative remedies, the Court will address the BOP’s
arguments regarding the substance of the plaintiffs’ claims.
FOIA was designed “to facilitate public access to Government
United States Dep’t of State v. Ray, 502 U.S. 164,
If a citizen seeks documents that are “reasonably
described” in a request, FOIA requires an agency to make them
5 U.S.C. § 552(a)(3).
A court reviews an
§ 552(a)(4)(B); Jones v. F.B.I., 41 F.3d 238, 242 (6th Cir. 1994).
Where, as here, the agency seeks summary judgment on the
ground that it fully disclosed documents in response to a FOIA
request, the agency “must demonstrate that it has conducted a
search reasonably calculated to uncover all relevant documents.”
Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 551 (D.C.
documents, but whether the search was adequate. Kowalczyk v. Dep’t
of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996).
A search is
presumptively adequate if the agency used “methods which can be
reasonably expected to produce the information requested.” Oglesby
v. U.S. Dept. of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
the summary judgment phase, the adequacy of the search can be
established by affidavits, which are afforded a presumption of
Defenders of Wildlife v. U.S. Dep’t of Interior, 314
F. Supp. 2d 1, 8 (D.D.C. 2004).
Government Information Specialist in the BOP’s FOIA section. White
has extensive experience with FOIA and the Justice Department’s
regulations applicable to FOIA requests.
[R. 20-3 at 1-2]
prepared the BOP’s April 2015 response to Davidson’s FOIA request,
which described the numerous locations and nature of the documents
searched for by BOP staff and noted that no documents responsive
to Davidson’s sixth request were located.
In his affidavit, White
further stated that in follow-up correspondence, the BOP’s Trust
Fund Branch indicated that trust funds are not used to improve
staff dining rooms at any BOP facility.
[R. 20-3 at 3]
Before discussing the substance of Davidson’s FOIA claim, the
Davidson contends that White’s affidavit is not based upon personal
knowledge because while he described the outcome of the search
conducted by BOP staff, he was not personally involved in the
But in a FOIA action, the question is not
the substance of the documents found, but the reasonableness of
the search itself.
Kowalczyk, 73 F.3d at 388.
Therefore, the BOP
is correct that “the personal knowledge requirement is met where
a declarant has personal knowledge of the procedures used in
handling the request and familiarity with the documents at issue.”
American Mgt. Svcs., LLC v. Dept. of the Army, 842 F.Supp.2d 859,
866 (E.D. Va. 2012); see also Russell v. U.S. Dept. of State, 651
F. App’x 667 (9th Cir. 2016) (“an affidavit from an agency employee
responsible for supervising a FOIA search is all that is needed to
satisfy the personal knowledge requirement of Federal Rule of Civil
personal knowledge requirement in this FOIA action, and Davidson’s
motion to strike it will be denied.
Here, White’s affidavit establishes that the BOP’s search was
FOIA simply requires the agency to “make a good faith
effort to conduct a search for the requested records using methods
Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 547 (6th Cir.
Where the agency’s search failed to produce any responsive
documents, a FOIA claim must fail if the search was reasonable in
light of the specific request, Knittel v. I.R.S., 795 F. Supp. 2d
713, 718 (W.D. Tenn. 2010) (citing Meeropol v. Meese, 790 F.2d
942, 956 (D.C. Cir. 1986)), unless the plaintiff can provide
evidence demonstrating the agency’s bad faith.
Jones v. FBI, 41
F.3d 238, 242 (6th Cir. 1994).
necessarily inadequate because there is no indication that a search
was conducted at FMC-Lexington itself.
R. 34 at 46-48.
in Davidson’s complaint are his unfounded assumptions both that
originated at the local prison rather than at the Trust Fund Branch
at the BOP’s headquarters Washington, D.C., and that any documents
which did originate at the local prison would not have been
transmitted to the BOP’s Central Office. 4
More fundamentally, the question in a FOIA action is not
whether the responding agency could have done more, but whether
information indicating whether trust funds had been spent to
improve the officer’s dining area at FMC-Lexington, and the BOP’s
Trust Fund Branch searched its Financial Management Information
System, which is “where these records would be maintained or
stored,” for responsive documents.
[R. 20-3 at 2-3, 7-8]
Notably, expenditures from funds in the trust are managed
centrally in the Trust Fund Branch, not at each facility.
Program Statement 4500.11 Ch. 2 § 2.3(c), (c)(4).
bottom, Davidson simply disagrees with the BOP staff charged with
maintaining these documents about where they were likely to be
Given the strong presumption of good faith to be afforded
to an agency’s search for records under FOIA, Davidson has failed
to demonstrate the BOP’s bad faith in responding to his FOIA
Davidson’s FOIA claim set forth in Count Eight of the
complaint will therefore be dismissed.
The BOP seeks dismissal of all of the plaintiffs’ tort claims
seeking damages on the ground of sovereign immunity.
administration of the inmate grievance process, the Court will
dismiss these claims regardless of the nature of the relief sought.
28 U.S.C. § 1915(e)(2) directs a district court to dismiss a claim
“at any time” if it determines that the claim is frivolous or fails
to state a claim.
Hill v. Lappin, 630 F. 3d 468, 470-71 (6th Cir.
Davidson and Jennings contend that the BOP has violated their
due process rights by taking too long to formally receive their
grievances and appeals, by taking too long to respond to them, and
by stating incorrectly that required documents have not been
As a result, they have incurred extra costs for postage
and office supplies, as well as delays in the resolution of the
[R. 1 at 10-18, 22-24]
constitutional right to have a grievance process at all, and thus
they have no due process right to one that functions in a manner
the inmate deems efficient and timely.
Argue v. Hoffmeyer, 80 F.
constitutional right to an effective prison grievance procedure.”)
(citing Hewitt v. Helms, 459 U.S. 460, 467 (1983)); Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Flick v. Alba, 932
F.2d 728, 729 (8th Cir. 1991) (federal grievance regulations
liberty interest in access to that procedure); McCalla v. United
States, No. 5: 15-CV-387-JMH, 2016 WL 1698295, at *6 (E.D. Ky.
Apr. 27, 2016).
The Court will therefore dismiss Davidson and
Jennings’ due process claims related to the BOP’s handling of their
grievances set forth in Counts Three and Seven of the complaint.
Jennings and Davidson also assert that they have “a protected
property interest in [their] pay and  eligibility to earn bonus
pay,” a right they contend was violated by the BOP’s reduction in
their pay grade in the fall of 2014.
[R. 1 at 20, 23]
correctly asserts that inmates have no constitutional right to
either hold a prison job or to be paid any wages for their work.
[R. 20-1 at 9]
Courts have long held that the loss of such a job
or a reduction in pay simply does not constitute the kind of
process concerns under Sandin v. Conner, 515 U.S. 472, 484 (1995).
See Bulger v. United States Bureau of Prisons, 65 F.3d 48, 50 (5th
Cir. 1995); Martin v. O'Brien, 207 F. App’x 587, 590 (6th Cir.
2006); Newsom v. Norris, 888 F.2d 371, 374 (6th Cir. 1989); Carter
v. Tucker, 69 F. App’x 678, 680 (6th Cir.2003).
The Court will
therefore grant summary judgment to the BOP with respect to the
due process claims asserted by Jennings and Davidson in Counts Two
and Six of the complaint.
The remaining three claims presented by Jennings and Davidson
are related to the trust funds.
In Count Four, the plaintiffs
allege that they have suffered injury because the BOP has neglected
property purchased with trust funds and used funds to benefit staff
members at the expense of inmates.
In Counts One and Five,
Jennings and Davidson allege that the BOP acted improperly by
transferring trust funds from FMC-Lexington to MARO; they imply
prevented them from being or eligible for bonus pay, or both. 5
Davidson and Jennings contend that, through these actions, the BOP
violated its duties to them as beneficiaries of the trust fund.
[R. 1 at p. 20-23]
To provide subject matter jurisdiction over these claims, the
plaintiffs invoke 28 U.S.C. § 1331 and 28 U.S.C. § 1346(a)(2).
[R. 1 at 1]
The former provision sets forth the Court’s “federal
question” jurisdiction; the latter provision is known as the
$10,000 or less in damages for claims “founded either upon the
Constitution, or any Act of Congress, or any regulation of an
executive department …”
Therefore, to state a viable claim and
provide a basis for subject matter jurisdiction, the plaintiffs
must first identify a federal source of substantive law for their
“trust law” claims.
Davidson and Jennings point to 31 U.S.C. § 1321(a)(22), a
definitional section which merely states that “[t]he following are
BOP policy actually provides that trust funds which are not
presently needed to meet operational expenses at the institution
must be deposited into a deposit fund maintained by the Treasury
in the name of the BOP (Treasury Account Symbol 15X8408), and/or
used to purchase government bonds so that the money can earn
interest. BOP Program Statement 4500.11 Ch. 2 § 2.1a.
classified as trust funds … Commissary funds, Federal prisons…”
The only prescriptive aspect of the section is found in Section
1321(b)(1), which states that:
Amounts that are analogous to the funds named in
subsection (a) … and are received by the United States
Government as trustee shall be deposited in an
appropriate trust fund account in the Treasury. …
amounts accruing to these funds are appropriated to be
disbursed in compliance with the terms of the trust.
Plaintiffs rely exclusively upon this provision to assert that the
administration of the trust funds.
[R. 34 at 24-28 (citing United
States v. Mitchell, 463 U.S. 206 (1983)] 6
The BOP responds that following the decision in Mitchell,
courts have frequently concluded that federal statutes and rules
do not impose fiduciary obligations, even those characterizing a
relationship as one of “trust” between the parties.
[R. 38 at 6
(citing National Assoc. of Counties v. Baker, 842 F.2d 369, 37576 (D.C. Cir. 1988), cert. denied, 488 U.S. 1005 (1989); Han v.
The BOP correctly notes that Mitchell involved the Tucker Act,
28 U.S.C. § 1491(a)(1), which does not supply this Court with
jurisdiction at all.
Nor would the Court of Claims have
jurisdiction because claims that “the BOP breached a fiduciary
duty owed to plaintiff as to the administration and management of
his trust fund also sound in tort[,]” Powers v. United States,
2015 WL 4931482, at *7 (Cl. Ct. 2015), a type of claim expressly
excluded from the Tucker Act’s scope.
United States Department of Justice, 45 F.3d 333, 337 (9th Cir.
The Court of Claims recently discussed this question at length
with respect to the BOP’s Trust Fund, which is funded through
commissary sales and is at issue here, and concluded unequivocally
that 31 U.S.C. § 1321, the statute upon which the plaintiffs rely,
does not create fiduciary duties:
[W]hile the Commissary Fund is classified as a “trust”
under 31 U.S.C. § 1321(a) (as are some ninety other
diverse funds), it is well established that such
classification alone is not sufficient to establish that
obligations on the United States that would subject it
to a claim for monetary damages for their breach.
Further, the legislative history of § 1321 does not
reveal congressional intent to impose any particular
fiduciary duties on the government with respect to any
of the funds designated as “trust” funds under that
There is no reason to believe that when
Congress designated the Commissary Fund as a trust for
this specialized purpose it also intended to subject the
United States to liability for money damages for breach
of fiduciary obligations.
As contrasted with the monies held in the Prisoner's
Trust Fund, the monies in the Commissary Fund do not in
any sense belong to the prisoners; in fact, Circular No.
2244 expressly denies inmates any entitlement to the
earnings of the Commissary.
Spengler v. United States, 127 Fed. Cl. 597, 601-02 (Cl. Ct. 2016).
The Court finds this reasoning thorough and persuasive, and
concludes that Section 1321 does not impose fiduciary duties upon
the BOP enforceable in an action for legal remedies against it. 7
The Court will therefore dismiss Counts One, Four, and Five.
As a final matter, seven months after the BOP filed its motion
for summary judgment in this case and five months after briefing
on that motion was completed, Davidson filed a motion to amend his
complaint to add a second FOIA claim.
That claim is based
upon OIP’s February 24, 2016 response to his second request for
documents related to inmate pay, the appeal of which was resolved
in OIP’s June 17, 2016 letter.
The Court will deny the requested amendment for two reasons.
exhausted before a party files suit. Stebbins v. Nationwide Mutual
Insurance Co., 757 F.2d 364, 366 (D.C. Cir. l985).
exhaustion is a condition precedent to suit, exhaustion must be
completed in its entirety before suit is filed; it may not be
completed during the pendency of an action.
States, 165 F. App’x 991, 993 (3d Cir. 2006).
Oriakhi v. United
Here, Davidson filed
To the extent the plaintiffs seek equitable relief in the form
of an accounting of trust fund expenditures, they do not indicate
that they have sought this information by using the mechanism
expressly provided by the BOP to request financial statements and
annual reports from the Central Office. See BOP Program Statement
4500.11 § 2.2(a).
his initial request only after he filed suit, and his appeal was
not resolved until long after.
Therefore, Davidson cannot have
satisfied the exhaustion requirement to pursue his claims in this
Taylor v. Appleton, 30 F.3d 1365, 1367-68 (11th Cir.
Second, to permit the addition of another claim long after
extensive briefing and argument has been completed would be unduly
prejudicial to the parties.
The Court will therefore deny the
Davidson may, of course, pursue his second
FOIA claim in a separate proceeding.
Accordingly, it is ORDERED as follows:
The Plaintiffs’ motion to strike the declaration of Alex
White [R. 32] is DENIED.
The Bureau of Prisons’ motion to dismiss the complaint,
or in the alternative, for summary judgment [R. 20] is GRANTED.
The Complaint of plaintiffs Clifton Davidson and Alfred
Jennings [R. 1] is DISMISSED WITH PREJUDICE with respect to all
matters asserted therein.
The Plaintiffs’ motion to amend their complaint [R. 46]
The Court will enter an appropriate judgment.
This matter is STRICKEN from the active docket of the
This the 31st day of March, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?