McCalla v. Reis et al
Filing
8
MEMORANDUM OPINION & ORDER: (1) MaCalla's compliant is DISMISSED; (2) court will enter a judgment with this order; (3) matter is STRICKEN from the docket. Signed by Judge Joseph M. Hood on 8/21/18.(KJR)cc: COR, McCalla (US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
GEOFF MCCALLA,
)
)
)
)
)
)
)
)
)
Plaintiff,
V.
LT. J. REIS, et al.,
Defendants.
***
Federal
inmate
***
Geoff
Civil No. 5: 17-462-JMH
MEMORANDUM OPINION
AND ORDER
***
McCalla
***
has
filed
a
civil
rights
complaint pursuant to the doctrine announced in Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). [R. 1]
This
matter
is
before
the
Court
to
screen
the
complaint
as
required by 28 U.S.C. § 1915A. Hill v. Lappin, 630 F. 3d 468,
470-71 (6th Cir. 2010). The Court affords a pro se complaint a
forgiving
construction,
accepting
as
true
all
non-conclusory
factual allegations and liberally construing its legal claims in
the plaintiff’s favor. Davis v. Prison Health Servs., 679 F.3d
433, 437-38 (6th Cir. 2012).
I
McCalla states that in mid-September 2016, fellow inmate
Harold Williams returned from a period in the segregation unit
only to find that his Bible was missing from his regular cell.
When Williams asked McCalla what he should do, McCalla told him
to find the receipt for his Bible and to file it along with an
inmate grievance and a formal tort claim against the officer he
thought
had
confiscated
it.
Williams
took
McCalla’s
advice.
[R. 1 at 13; R. 1-1 at 1-6]
But prison officials believed that McCalla’s direction to
Williams was part of a concerted effort by him to get numerous
inmates to file administrative grievances against staff members
on spurious grounds. On September 28, 2016, McCalla was placed
in
administrative
segregation
pending
further
investigation.
[R. 1 at 13; R. 1-1 at 7, 10] Questioned by the Bureau of
Prisons’
internal
affairs
officer,
Williams
signed
a
written
statement acknowledging that “[i]nmate McCalla has told me and
other inmates to file BP-9’s against unit officers in order to
get personal property back and retaliation. All the while we are
filing false BP-9’s and getting into trouble for this.”1 On the
basis of Williams’ statement, as well as information provided by
a confidential informant, on October 28, 2016 Lt. J. Reis issued
an Incident Report charging McCalla with attempting to encourage
a group demonstration, a Prohibited Action Code 212A offense.
[R. 1 at 13; R. 1-1 at 8-9]
McCalla indicates that the Code 212A charge was dropped six
weeks
later
on
December
19,
2016.
However,
he
was
not
1
McCalla has attached to his complaint a declaration by Williams
which now disavows his earlier written statement and asserts
that it was given under duress. [R. 1-1 at 5]
2
immediately returned to the general population. [R. 1 at 13]
Unhappy that he was still confined in the segregation unit,
sometime between December 25 and 28, 2016, McCalla requested a
“whole stack” of inmate grievance forms. In correspondence with
prison officials in January and February 2017, McCalla stated
that he had wanted the stack of grievance forms “so that I could
file on all the improper procedures and Constitutional / Civil
rights violations that had occurred against me regarding my trip
to/stay in the SHU.” [R. 1-1 at 10-12] However, McCalla now
asserts that he wanted to complain not only about the delay in
his release from segregation, but also about every single claim
that he currently asserts in his complaint. [R. 1 at 10-11]
In
response
to
McCalla’s
request,
Unit
Manager
Murphy
refused to give him a “whole stack” of grievance forms, but
agreed to give him one grievance form and stated that he could
obtain one additional grievance form each day. [R. 1 at 11] On
December 29, 2016, McCalla filed one grievance regarding his
continued
denied
placement
as
segregation,
in
segregation.
moot
shortly
and
McCalla
after
took
This
McCalla
no
appeal
grievance
was
from
was
later
released
from
that
denial.
McCalla did not file any other grievances. [R. 1 at 11, 14; R.
1-1 at 10]
McCalla alleges that on December 29, 2016 he also handed
Murphy an envelope addressed to this Court containing a notice
3
of appeal to be filed in McCalla v. United States, No. 5: 15387-JMH (E.D. Ky. 2015). McCalla alleges that the Court did not
receive his notice of appeal because Murphy threw it out instead
of mailing it. McCalla was released from the segregation unit on
January
3,
2017.
[R. 1
at
11,
14;
18]
The
docket
in
the
referenced case does not include a notice of appeal, nor any
other correspondence from McCalla requesting information about
the status of the appeal he now alleges he filed.
II
McCalla’s complaint asserts five claims. His first claim
contends that Lt. Reis filed the Incident Report against him in
October
to
retaliate
for
his
advice
to
Williams
to
file
a
grievance the month before. [R. 1 at 14-15]
The Sixth Circuit has found that an inmate who provides
legal
assistance
to
other
prisoners
is
engaging
in
activity
protected by the First Amendment, but only if the other prisoner
would be wholly unable to pursue legal relief without it. Herron
v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000) (citing Thaddeus–
X v. Blatter, 175 F.3d 378 (6th Cir. 1999)). Although McCalla
includes only his own conclusory allegation to this effect in
his complaint [R. 1 at 14], Williams himself gives no indication
that he was entirely incapable of filing a grievance without
McCalla’s involvement in his four-page declaration. [R. 1-1 at
3-6]. McCalla therefore has failed to plead sufficient facts to
4
state a claim of retaliation. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007); Hermansen v. Kentucky Dept. of Corr.,
556 F. App’x 476 (6th Cir. 2014).
McCalla also failed to exhaust his administrative remedies
with respect to this claim. The Court may dismiss a complaint
upon initial screening where the failure to exhaust is apparent
from the face of the complaint. Shah v. Quintana, No. 17-5053,
2017 WL 7000265, at *1 (6th Cir. July 17, 2017); Barnett v.
Laurel Co., Ky., No. 16-5658, 2017 WL 3402075, at *1 (6th Cir.
Jan. 30, 2017). Exhaustion requires a prisoner to fully utilize
the
prison’s
regarding
the
inmate
grievance
conditions
of
system
his
before
filing
confinement.
42
suit
U.S.C.
§ 1997e(a); 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
BOP’s
Inmate Grievance System requires a federal prisoner to file a
formal grievance with the warden within twenty days after the
event complained of, and to file appeals to the Regional Office
and then the Central Office if he is not satisfied with the
response.
exhaustion
28
C.F.R.
demands
§§ 542.14(a),
compliance
with
.15(a).
an
Because
agency’s
“[p]roper
deadlines
and
other critical procedural rules ...”, Woodford v. Ngo, 548 U.S.
81, 90 (2006), the prisoner must file the initial grievance and
any appeals within these time frames.
5
Here, McCalla admits that he did not follow these steps,
but
argues
entirely
that
the
BOP’s
“unavailable”
to
administrative
him
because
on
remedy
process
December
25,
was
2016
Officer Murphy would only agree to give him one grievance form
per day instead of a “whole stack” at once. [R. 1 at 4, 10-11]
Section 1997e(a) requires the grievance system be “available,”
but that means only that it must be “capable of use to obtain
some relief for the action complained of.” Ross v. Blake, __
U.S. __, 136 S. Ct. 1850, 1859 (2016) (quoting Booth v. Churner,
532
U.S.
731,
737
(2001)).
A
grievance
process
may
not
be
“available” where, for example, (1) the procedure does not grant
prison officials the authority to grant relief, or the procedure
grants authority but officials always refuse to exercise it; (2)
the procedure is so confusing, as written or in practice, that
no
reasonable
officials
prisoner
prevent
can
inmates
make
from
sense
of
filing
it;
or
(3)
grievances
prison
through
intimidation or misrepresentation. Ross, 136 S. Ct. at 1859-60.
In addition, a prisoner must make a meaningful effort to follow
the grievance process before the asserted unavailability of the
procedure becomes relevant. Napier v. Laurel Cnty., 636 F.3d
218, 223-24 (6th Cir. 2011).
Murphy’s action restricting McCalla to one grievance form
per day placed only the slightest limitation upon his ability to
file a grievance, and certainly did not render the grievance
6
process entirely “incapable of use” with respect to every one of
his claims. In addition, McCalla indicates that he filed no
further grievances even after he was released from segregation.
These facts establish that the BOP’s Inmate Grievance System was
“available” to McCalla for his use. See Arbuckle v. Bouchard, 92
F. App’x 289, 291 (6th Cir. 2004) (“[Plaintiff]'s bald assertion
that [the grievance coordinator] refused to give him grievance
forms is not enough to excuse the complete absence of evidence
that he attempted to exhaust his administrative remedies for the
many claims he raised in his district court complaint.”).
McCalla
did
file
one
grievance
regarding
his
“continued
placement in the SHU,” but it is not clear if this grievance
encompassed his retaliation claim.
If it did, that grievance
was denied on February 17, 2017, [R. 1-1 at 10], and McCalla
indicates that he took no appeal from that denial. For each of
these
reasons,
remedies
with
McCalla
respect
failed
to
to
his
exhaust
first
his
claim,
administrative
and
it
must
be
dismissed.
McCalla’s
interest
in
second
claim
remaining
in
asserts
the
that
general
he
has
population;
a
liberty
that
an
unidentified “Segregation Review Official” failed to review his
placement in segregation after three days and to hold a hearing
after seven and thirty days as required by regulation; and that
the conditions of his confinement in segregation violated his
7
due process rights under the Fifth Amendment. McCalla alleges
only that he suffered mental and emotional harm, not physical
injury. [R. 1 at 15-18]
As a preliminary matter, McCalla asserts this claim only
against the “Segregation Review Official,” a person he has not
identified by name. In short, he has failed to name a suable
defendant, and the time within which to amend his complaint to
do
so
has
long
passed.
Fed.
R.
Civ.
P.
15(c)(1)(C).
Any
amendment would therefore not “relate back” to the date of the
complaint’s filing in order to avoid a statute of limitations
bar. Brown v. Cuyahoga Co., Ohio, 517 F. App’x 431, 433 (6th
Cir. 2013); Smith v. City of Akron, 476 F. App’x 67, 69 (6th
Cir. 2012). The claim is thus also barred by the applicable oneyear
statute
of
limitations
found
in
Ky.
Rev.
Stat.
§ 413.140(1)(a). Hornback v. Lexington-Fayette Urban Co. Gov’t.,
543 F. App’x 499, 501 (6th Cir. 2013); Mitchell v. Chapman, 343
F.3d 811, 825 (6th Cir. 2003).
In addition, the events about which he complains occurred
in September and October 2016, but he did not attempt to file
any grievances until late December 2016, well past the 20 days
permitted by regulation. 28 C.F.R § 542.14(a). This claim was
therefore not timely and properly exhausted. Cohron v. City of
Louisville,
Ky.,
530
F.
App’x
Woodford, 548 U.S. at 90.
8
534,
536
(6th
Cir.
2013);
McCalla’s placement in segregation also did not violate his
rights under the Due Process Clause. The Supreme Court long ago
made
clear
that
placement
in
administrative
segregation
is
simply one of the “ordinary incidents of prison life” that a
prisoner may experience during the course of his incarceration.
It
is
only
where
the
actions
of
prison
officials
impose
“atypical and significant hardships” upon a prisoner that the
Due Process Clause is implicated. Sandin v. Conner, 515 U.S.
472, 483-84 (1995).
Here,
McCalla
approximately
three
was
held
in
months,
administrative
during
which
detention
time
he
had
for
only
limited access to the radio, recreation, exercise, commissary
items,
the
law
library,
e-mail
and
phone
calls.
Applying
Sandin’s broad principle to specific circumstances, courts have
routinely found that periods of time far longer than McCalla
spent
in
conditions)
segregation
were
here
(and
insufficient
to
under
state
similar
a
viable
or
due
worse
process
claim. Cf. Williams v. Lindamood, 526 F. App’x 559 (6th Cir.
2013) (placement in segregation with limited access to exercise,
visitation, and communication for 19 months not an atypical and
significant
change
Baker,
F.3d
155
in
810,
conditions
812–13
(6th
of
confinement);
Cir.
1998)
(30
Jones
v.
months
in
segregation during investigation of prisoner’s involvement in
riot
did
not
deprive
him
of
liberty
9
interest
without
due
process); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997) (14
months);
Joseph
v.
Curtin,
410
F.
App’x
865,
868
(6th
Cir.
2010).
In his third claim, McCalla alleges that Officer Murphy
discarded an envelope containing a notice of appeal to be filed
in McCalla v. United States, No. 5: 15-387-JMH (E.D. Ky. 2015),
conduct he contends interfered with his right under the First
Amendment to access the courts. [R. 1 at 18-19] However, McCalla
failed
to
exhaust
this
claim
for
all
of
the
reasons
stated
above, as he admits that he did not file an inmate grievance
with
respect
to
it.
Notably,
McCalla
would
likely
have
discovered that his notice of appeal had not been filed at some
point in January or February 2017, well after Murphy limited him
to one grievance form per day for a period of time in December
2016. In short, no impediment existed to prevent McCalla from
filing an inmate grievance with respect to this claim, and his
failure to avail himself of the grievance process renders this
claim unexhausted. Hartsfield v. Vidor, 199 F.3d 305, 309 (6th
Cir. 1999).
In addition, a plaintiff asserting a right-of-access claim
must establish standing to sue by pointing to an actual injury
flowing
from
established
frivolous.
by
the
conduct
showing
Lewis
v.
that
Casey,
alleged.
the
518
10
That
underlying
U.S.
343,
injury
claim
351
must
was
(1996).
be
nonThe
plaintiff
successful,
need
not
only
prove
that
it
that
is
the
claim
“arguable,”
would
even
have
if
not
been
yet
established. Brown v. Matauszak, 415 F. App’x 608, 610 (6th Cir.
2011). But here, McCalla cannot make that showing because the
underlying
claim
in
his
earlier
case
was
dismissed
with
prejudice in April 2016, long before he filed suit here. The
viability of the underlying claim having already been decided
against him in the earlier case, any attempt to relitigate that
issue here as an element of his access-to-courts claim is barred
by collateral estoppel. Accord Anderson v. City of Blue Ash, 798
F.3d 338, 350 (6th Cir. 2015); Requena v. Roberts, 893 F. 3d
1195, 1209 (10th Cir. 2018).2
McCalla’s fourth claim asserts that BOP Code 212, which
prohibits an inmate from “[e]ngaging in or encouraging a group
demonstration,” 28 C.F.R. § 541.3 Table 1 (2010), violates the
First
Amendment
as
applied
constitutionally-protected
to
speech,
him
because
namely
it
assisting
punishes
other
inmates with filing grievances. While the Code 212 disciplinary
charge against McCalla was dropped, he states that he fears that
2
McCalla’s notice of appeal was not due until February 20, 2017.
Fed. R. App. P. 4(a)(1)(B). If McCalla tendered his notice of
appeal for mailing in late December 2016, due diligence required
that he check on the status of it in the coming months. Had he
done so and promptly learned that it had not been filed, up
until March 22, 2017 he could have filed a request for a 30-day
extension of time to file his notice of appeal upon a showing of
mere excusable neglect or good cause. Fed. R. App. P.
4(a)(5)(A). This he did not do.
11
in
the
future
prison
officials
will
threaten
him
with
disciplinary sanctions to deter him from assisting others. [R. 1
at 19-21]
This claim must be dismissed because McCalla lacks standing
to
assert
it.
Article
III,
Section
2
of
the
United
States
Constitution limits the jurisdiction of federal courts to the
consideration of “Cases” and “Controversies.” To satisfy this
requirement, the plaintiff “must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to
be
redressed
by
a
favorable
judicial
decision.”
Lewis
v.
Continental Bank Corp., 494 U.S. 472, 477–78 (1990). A claim may
not be predicated upon speculation alone, as the federal courts
cannot issue “an opinion advising what the law would be upon a
hypothetical
state
of
facts.”
Aetna
Life
Insurance
Co.
v.
Haworth, 300 U.S. 227, 241 (1937).
In this case, McCalla posits that although the prior Code
212 charge against him was dropped, he might be prosecuted under
that same provision based upon the same conduct in the future.
This sort of speculation has long been held insufficient to
satisfy the standing requirements of Article III. Cf. Spencer v.
Kemna,
523
U.S.
1,
14-16
(1998);
Summers
v.
Earth
Island
Institute, 555 U.S. 488, 493 (2009) (plaintiff must establish
that threat of alleged future injury is “actual and imminent,
not
conjectural
or
hypothetical”).
12
Where,
as
here,
the
disciplinary charge was expunged or otherwise rendered moot, the
case and controversy requirement is not satisfied, and the claim
must be dismissed. Mertins v. Maye, No. 13-3001-RDR, 2015 WL
2365526, at *3-4 (D. Kan. May 18, 2015) (citing Craft v. Jones,
473 F. App’x 843, 845–46 (10th Cir. 2012)).
This claim is also subject to dismissal for failure to
exhaust administrative remedies. 42 U.S.C. § 1997e(a). McCalla
filed a single inmate grievance related to his placement in
segregation in September 2016 and/or his continued detention in
segregation after the disciplinary charge was dropped, and he
took no appeal from the denial of that grievance. [R. 1 at 1011; R. 1-1 at 10] McCalla did not fully complete the BOP’s
grievance process, and the grievance he did file related to a
different subject matter than that which forms the basis for
this
claim.
The
claim
must
therefore
be
dismissed
as
unexhausted. Freeman v. Francis, 196 F.3d 641, 645 (6th Cir.
1999).
Finally,
the
claim
is
without
merit.
While
individuals
retain some measure of their constitutional rights upon entering
prison, in order to account for the need of prison officials to
ensure safety and security within the prison walls, the scope of
those rights is narrower than those enjoyed by free citizens.
Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S.
119,
125
(1977).
Accordingly,
13
courts
have
found
that
the
application of Code 212 does not impermissibly interfere with
inmates’ rights to free speech and association under the First
Amendment. Cf. Canty v. Booker, No. 97-3435-RDR, 2000 WL 134455,
at *3 (D. Kan. Jan. 27, 2000).
McCalla’s fifth and final claim asserts that BOP Prohibited
Action Codes 199, 299, 399, and 499 are void for vagueness and
hence facially unconstitutional under the Fifth Amendment. The
language
of
prohibiting
each
conduct
of
these
“which
provisions
disrupts
or
is
nearly
interferes
identical,
with
the
security or orderly running of the institution” that is like,
but not identical to, a more specific Prohibited Action Code. 28
C.F.R. § 541.3 Table 1 (2010). McCalla contends on the one hand
that these rules do not give adequate notice of the conduct
proscribed, but on the other that “all conduct is prohibited
under those catch-all rules.” [R. 1 at 20-22]
This claim is subject to dismissal for many of the same
reasons
set
forth
with
respect
to
McCalla’s
fourth
claim.
McCalla undertook no effort to exhaust this claim as required by
42 U.S.C. § 1997e(a), [R. 1 at 10-11; R. 1-1 at 10], and hence
this claim must be dismissed as unexhausted. Lee v. Wiley, 789
F. 3d 673, 677 (6th Cir. 2015). McCalla also does not allege
that
he
was
charged
and
convicted
under
any
of
these
disciplinary codes, only that he might be in the future. This
claim thus does not present an actual case or controversy over
14
which the Court may assume jurisdiction, Summers, 555 U.S. at
493; Tracy v. Bragg, No. EP-11-CV-252-PRM, 2011 WL 6002626, at
*3 (W.D. Tex. Nov. 30, 2011), and must be dismissed.
Accordingly, IT IS ORDERED that:
1.
McCalla’s complaint [R. 1] is DISMISSED.
2.
The Court will enter a judgment contemporaneously with
this order.
3.
This matter is STRICKEN from the active docket.
This the 21st day of August, 2018.
15
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