Green v. USA et al
Filing
14
MEMORANDUM OPINION & ORDER: 1) Plf John Green's official capacity constitutional claims against all named dfts are DISMISSED WITH PREJUDICE; 2) Green's Fifth and Eighth Amendment claims against Dfts "P. Reach, USP-McCreary Counselo r; Eric Wilson, former Warden, USP-McCreary; Terry Browder, USP- McCreary Case Manager; "C." Eichenlaub, BOP Regional Director; Darrell Watts, BOP General Counsel; and Michelle Fuseymore, BOP Regional Counsel, are DISMISSED WITH PREJUDICE ; 3. Dft Jimmy Pittman, USP-McCreary Unit Manager, is directed to respond to Green's Fifth & Eighth Amendment claims and the Clerk of the Court shall issue summons for Dft Pittman in his individual capacity; 4) US shall respond to Green' ;s FTCA claims and the Clerk shall prepare and issue a summons for the US to respond to the Complaint 2 and attachments; 6) In add to the summons, the Clerk shall make for sets of copies of the summons and mark on set to be served on the US Atty General, one set to be served on the US Atty; one set to be served on the BOP; and one set to be served on Officer Jimmy Pittman; 6) Clerk shall also prepare as many copies of the Cmplaint 2 and this MOO as there are summonses and any required USMS Forms 285; copies of the Complaint and this MOO, 7) After the Clerk's Office has prepared the copies of the summons, USM for EDKY a Deputy Clerk shall deliver those documents by certified mail, return receipt requested to the USMS Offic e in Lexington, KY; 8) Deputy Clerk making the delivery to the USMS Office shall enter the time and fact of the delivery into the record; 9) USMS shall serve the copies of the summons, Complaint 2 and this MOO on the US Atty General in Washing ton, D.C.; on the US Atty for the EDKY and on the FBP each to be served by certified mail, return receipt requested. 10) The USMS shall serve the summons, Complaint 2 and this MOO on Officer Jimmy Pittman by personal service upon Pittman at the US Penitentiary-McCreary in Pine Knot, KY through arrangement w/the FBOP; 11) Green shall keep the Clerk of the Court informed of his current mailing address; Failure to notify the Clerk of any address change may result in a dismissal of this case ; and 12) For every further pleading or other document Green submits for consideration, he shall serve upon each Dft, or if appearance has been entered by counsel, upon ea atty, a copy of the pldg or other document; Green shall send his original p apers tot he Clerk of the Court together w/ a certificate stating the date on which he mailed a true and correct copy of the document to each dft or counsel; If a District Judge or Mag Judge reeives any document which has not been filed w/ the Clerk or which has been filed but fails to include the certificate of service of copies, the Court will disregard the document. Signed by Judge Henry R. Wilhoit, Jr on 6/11/2012.(RBB)cc: COR, paper copy to pro se party via US Mail
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
JOHN GREEN,
Plaintiff,
Action No. 6:11-CV-00059-HRW
v.
UNITED STATES OF AMERICA, et
al.,
MEMORANDUM OPINION
AND ORDER
Defendants.
**** **** **** ****
John Green is an inmate confined in the United States Penitentiary-McCreary
in Pine Knot, Kentucky. Green, proceeding without an attorney, filed a civil rights
complaint asserting various constitutional claims pursuant to Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971) and negligence claims under the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80. [D. E. No. 2r
Because the Court has granted Green's motion to pay the filing fee in
installments [D. E. No. 10] and because he is asserting claims against government
officials, the Court screens his Complaintpursuantto 28 U.S.C. §§ 1915(e)(2)(B) and
1915A. These sections require a district court to dismiss any claims that are frivolous
The defendants are (1) the United States of America; (2) Eric D. Wilson, former Warden,
USP-McCreary; (3) Terry Browder, Case Manager, USP-McCreary; (4) Jimmy Pittman, Unit
Manager, USP-McCreary; (5) "P."Reach, Unit2-A Counselor, USP-McCreary; (6) "C."Eichenlaub,
Regional Director, Bureau ofPrisons ("BOP") Mid-Atlantic Regional Office ("MARO"), (7) Harrell
Watts, BOP General Counsel; and (8)Michelle Fuseymore, BOP Regional Counsel.
1
or malicious, fail to state a claim upon which reliefmay be granted, or seek monetary
relief from defendants who are immune from such relief. McGore v. Wrigglesworth,
114 F.3d 601,607-08 (6th Cir. 1997).
I
Green alleges that between October 2007 and March 3,2010, he was assigned
to the lower bunk in his cell. On March 3,2010, another inmate, Reyes Pena, arrived
in the cell and told Green that BOP Case Manager Terry Browder had assigned him
to the lower bunk bed in that cell. When Green told Officer Settles ofthe conflicting
assignments to the lower bunk bed, Settles told Green that he could not do anything
about it because defendants Browder, Pittman, and Reach had already left for the day.
Pena took the upper bunk that night.
The next day, Green informed Unit Manager Pittman that both he and Pena had
been assigned the same lower bunk bed. Green also alleges that he told Pittman that
he and Pena were incompatible, and that Pena did not understood or speak English.
Green alleges that Pittman promised him that he would reassign Pena to a different
cell, but that this never happened. [D. E. No.2 at 4] On March 5 or 6, 2010, the
Inmate Roster still listed both Green and Pena as the occupants of the same lower
bunk bed.
On March 11, 2010, Green's lower bunk bed pass was renewed.
Approximately two weeks later, Pena accused Green of sleeping in "his" lower bunk
2
bed, and struck Green over his right eye using a lock hanging from a piece of string.
After officers restrained Pena, Green was treated for his eye injury, which required
seven stitches.
Green then filed an inmate grievance because ofthe assault. In his grievances
Green reiterated the same claim at each level of the administrative review process:
Prison staff exposed me to another prisoner who they knew, or should
have known, was dangerous and suffered mental problems. The staff
placed this individual in my cell with a lower bunk pass knowing that I
also had a lower bunk pass which precipitated this dispute. My injuries
were the proximate result ofmy being exposed to this individual. Prison
staff were deliberately indifferent to the situation and failed to correct
a known problem.
[D. E. No. 2-4 at 6, 13, 8, 15] The BOP denied Green's initial grievance and his
appeals, concluding that prison staff had followed appropriate procedures when
assigning cells. [Id., at 9]
On May 27, 2010, Green requested administrative settlement of his claim
against the BOP under the FTCA. [Id. at 1] The BOP acknowledged receipt of the
claim on July 1,2010, [Id. at 3] but Green alleges that it never made a final decision
on his FTCA claim. [D. E. No.9]
In his complaint, Green alleges that the defendants should have removed Pena
from his cell after he informed them of the conflict between the two, and that their
failure to do so constituted cruel and unusual punishment in violation of the Eighth
3
Amendment and violated the due process clause ofthe Fifth Amendment. Green also
seeks compensation for the defendants' alleged negligence under the FTCA.
II
Green does not indicate whether he wishes to sue the named defendants in their
individual or official capacity. However, any official capacity claim against a
defendant would fail as a matter of law, as Bivens only authorizes an action against
a federal official in his or her individual capacity. Center for Bio-Ethical Reform,
Inc. v. Napolitano, 648 F.3d 365,370 (6th Cir. 2011).
Any individual capacity claim under Bivens fails as a matter of law against all
but one defendant.
The Eighth Amendment requires prison officials to take
"reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan,
511 U.S. 825,832 (1994). This includes "a duty to protect prisoners from violence
at the hands ofother prisoners[,] and to protect inmates from unreasonable conditions
that pose 'a substantial risk of serious harm.'" Id. at 833-34. To establish a violation
ofthis duty, the prisoner must establish that the official was "deliberately" indifferent
to his health or safety, meaning that he or she was subjectively aware of a serious risk
of harm to the prisoner, and consciously chose to disregard it. Farmer, 511 U.S. at
837. This standard requires that the official be aware of the risk before the assault at
the hands of the other inmate. Cf Browning v. Pennerton, 633 F. Supp. 2d 415,423
4
(E.D. Ky. 2009).
Here, Green alleges that he informed defendant Pittman of his conflict with
inmate Pena prior to the assault, [D. E. No.2 at 4] but he makes no allegation that any
of the other defendants had any reason to know that Pena was likely to assault him.
Defendants Reach, Wilson, Eichenlaub, and Watts responded to Green's inmate
grievances after the assault had already occurred; likewise, defendant Fuseymore
responded to his request for administrative settlement under the FTCA. It is well
established that merely responding to an inmate grievance is not the kind ofpersonal
involvement with the underlying conduct that may subject that individual to
constitutional liability. Shehee v. Luttrell, 199 F.3d 295,300 (6th Cir.1999); Alder
v. Corr. Medical Services, 73 F. App'x. 839, 841 (6th Cir. 2003) ("The mere denial
of a prisoner's grievance states no claim of constitutional dimension."). Defendants
Browder and Reach were only involved after Green was assaulted. As they had no
notice of Pena's conflict with Green until after the fact, there is no basis to impose
liability on them under the Eighth Amendment. Bates v. Elwood, 2008 WL 2783190,
at *8-9 (E.D. Ky. 2008).
With respect to defendant Pittman, Green alleges that he told Pittman of his
conflict with Pena before the assault, but that Pittman did not remove one of the
inmates from the cell or otherwise act to avoid a confrontation. Pittman will be
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required to respond to Green's Fifth and Eighth Amendment claims.
To the extent that Green asserts a due process claim under the Fifth
Amendment against Reach, Wilson, Eichenlaub, Watts, and Fuseymore based upon
their denial of his administrative grievances, those claims fail as a matter of law.
Green had no constitutionally protected liberty interest in an effective grievance
procedure. Argue v. Hofmeyer, 80 F. App'x 427, 430 (6th Cir. 2003); Overholt v.
Unibase Data Entry, Inc., 2000 WL 799760, at *3 (6th Cir. 2000).
Finally, Green appears to have administratively exhausted his claim under the
FTCA because he alleges that the BOP has not responded to it within the time period
permitted by 28 U.S.C. § 2675(a). The United States will be required to respond to
Green's FTCA claims.
Accordingly, IT IS ORDERED as follows:
(1)
Plaintiff John Green's official capacity constitutional claims against all
named defendants are DISMISSED WITH PREJUDICE;
(2)
Green's Fifth and Eighth Amendment claims against Defendants "P."
Reach, USP- McCreary Counselor; Eric Wilson, former Warden, USP-McCreary;
Terry Browder, USP-McCreary Case Manager; "C."Eichenlaub, BOP Regional
Director; Darrell Watts, BOP General Counsel; and Michelle Fuseymore, BOP
Regional Counsel, are DISMISSED WITH PREJUDICE;
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(3)
Defendant Jimmy Pittman, USP-McCreary Unit Manager, is directed to
respond to Green's Fifth and Eighth Amendment claims, and the Clerk of the Court
shall issue summons for Defendant Pittman in his individual capacity;
(4)
The United States shall respond to Green's FTCA claims, and the Clerk
ofthe Court shall prepare and issue a summons for the United States to respond to the
Complaint, [D. E. No.2], and attachments;
(5)
In addition to the summons, the Clerk shall make four sets of copies of
the summons and mark one set to be served on the United States Attorney General;
one set to be served on the United States Attorney for the Eastern District of
Kentucky; one set to be served on the BOP; and one set to be served on Officer
Jimmy Pittman;
(6)
The Clerk shall also prepare as many copies ofthe Complaint [D. E. No.
2] and this Memorandum Opinion and Order as there are summonses and any
required United States Marshals Service ("USMS") Forms 285. If insufficient
information exists to sufficiently or effectively complete any summons or USM Form
285 regarding any Defendant, the Clerk shall promptly make a Clerk's entry on the
docket stating why the Clerk cannot fill out the summons or USM Form 285 or any
other documents necessary to effectuate service;
(7)
After the Clerk's Office has prepared the copies of the summons, USM
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Forms 285, copies of the Complaint and this Memorandum Opinion and Order, a
Deputy Clerk shall deliver these documents by certified mail, return receipt requested,
to the USMS Office in Lexington, Kentucky;
(8)
The Deputy Clerk making the delivery to the USMS Office shall enter
the time and fact of the delivery into the record;
(9)
The USMS shall serve the copies ofthe summons, Complaint [R. 2] and
this Memorandum, Opinion and Order, on the United States Attorney General in
Washington, D.C.; on the United States Attorney for the Eastern District ofKentucky;
and on the Federal Bureau of Prisons, each to be served by certified mail, return
receipt requested;
(10) The USMS shall serve the summons, Complaint [D. E. No.2] and this
Memorandum, Opinion and Order, on Officer Jimmy Pittman by personal service
upon Pittman at the United States Penitentiary-McCreary in Pine Knot, Kentucky
through arrangement with the Federal Bureau of Prisons;
(11) Green shall keep the Clerk of the Court informed of his current mailing
address. Failure to notify the Clerk of any address change may result in a dismissal
of this case; and
(12) For every further pleading or other document Green submits for
consideration, he shall serve upon each Defendant, or, ifappearance has been entered
8
by counsel, upon each attorney, a copy of the pleading or other document. Green
shall send his original papers to the Clerk of the Court together with a certificate
stating the date on which he mailed a true and correct copy of the document to each
defendant or counsel. If a District Judge or Magistrate Judge receives any document
which has not been filed with the Clerk or which has been filed but fails to include
the certificate of service of copies, the Court will disregard the document.
This 11 th day of June, 2012.
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