Spencer v. Wilson et al
Filing
11
MEMORANDUM OPINION & ORDER: 1. Spencer's motion for default judgment [R. 8 ] is DENIED. 2. Spencer's motion to compel the defendants to answer the complaint [R. 9 ] is DENIED as MOOT. 3. Spencer's claims related to (a) his p lacement in segregation; (b) the conditions of his confinement in segregation; (c) medical treatment of his injuries received on August 21, 2009; (d) the denial of water and other beverages; (e) medical treatment of his anorexia/eating disorder; a nd (f) the filing of an allegedly false disciplinary charge against him, are DISMISSED WITH PREJUDICE. 4. Spencer's excessive force claims against all dfts except Terry Baker and Reams are DISMISSED WITH PREJUDICE; 5) Spencer's constitut ional claims against eighteen USP McCreary Dfts: Boggs (Head of Education, USP McCreary), A. Bryant (Physician Assistant, USP McCreary), Caldell (Physician Assistant, USP McCreary), Millisa Gregory (Head of Health Services, USP McCreary), Jone s (Head of Health Services, USP McCreary), McCloud (Assistant Warden, USP McCreary), Richard Ramirez (Medical Doctor, USP McCreary), Reinwald (Psychologist, USP McCreary), Rush (Head of Psychology, USP McCreary), S. Sims (Counselor, USP McC reary), Smith (Assistant Warden, USP McCreary), J. Tucker (Case Worker, USP McCreary), Willard (Psychologist, USP McCreary), Eric D. Wilson, W. Wood (Case Worker, USP McCreary), R. Woods (Case Worker, USP McCreary), Anderson (Case Worker, US P McCreary) and Baker (Physician Assistant, USP McCreary) are DISMISSED WITH PREJUDICE and the Clerk of Court shall note in CM/ECF cover sheet that these dfts are TERMINATED from this action; 6. Dfts Lt Terry Baker and Correctional Officer Ream s shall respond to Spencer's 8th Amendment excessive force claims and Clerk of Court shall issue summons for Terry Baker and Correctional Officer Reams in their individual capacities; 7) for dfts Baker & Reams, Clerk of Court shall prepare "Service Packets" consisting of following documents: a) Completed summons forms, b) Complaint 2 and all attachments thereto; c) This MOO; d) Completed USMS Form 285 for ea dft; If Clerk is unable to accurately complete any docs Clerk shall set forth reason in a docket enry; 8) for both dfts Clerk shall prepar 3 Service Packets ot be provided to USMS in Lexington, KY addressed as follows: a) to the Civil Process Clerk @ the Office of the US Atty for EDKY; b) to the Offi ce of the Atty General of the US in Washington, D.C.; and c) to Baker & Reams @ the US Penitentiary - McCreary in Pine Knot, KY; 9) London Clerk shall send by certified mail the required Service Packets for bothof the dfts to USM in Lexington , KY and enter the certified mail receipt into the record, noting inthe docket the date that Service Packet was delivered to USM; 10) USM shall serve both dfts: a. Sending a Service Packet for both defendants by certified or registered mail to the Civil Process Clerk at the Office of the United States Attorney for the Eastern District of Kentucky; b. Sending a Service Packet for both defendants by certified or registered mail to the Office of the Attorney General of the United States in Washington, D.C.; and c. Personally serving a Service Packet upon Baker and Reams at the United States Penitentiary - McCreary in Pine Knot, Kentucky, through arrangement with the Bureau of Prisons. 11. Spencer must advise the London Clerks Office of any change in his current mailing address. Failure to do so may result in dismissal of this case. 12. Spencer must communicate with the Court solely through notices or motions filed with the London Clerk's Office. 12. For every further pl eading or other document he wishes to submit to the Court, Spencer shall serve upon each defendant, or, if appearance has been entered by counsel, upon each attorney, a copy of the pleading or other document. Spencer shall send the original papers to be filed with the Clerk of the Court together with a certificate stating the date a true and correct copy of the document was mailed to each defendant or counsel. 13. The Court will disregard any document which has not been filed with the Cler k of the Court; which has been filed but fails to include the certificate of service of copies; or which has been sent directly to the Judge's chambers. Signed by Judge Karl S. Forester on 6/8/2012.(RBB)cc: COR (paper copy to pro se filer via US Mail); certified copy to USM
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
BART SPENCER,
Plaintiff,
v.
ERIC D. WILSON, Warden, et al.,
Defendants.
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Civil Action No. 6:11-00128-KSF
MEMORANDUM OPINION
AND ORDER
***** ***** ***** *****
Bart Spencer is an inmate confined in the Springfield Medical Center in Springfield,
Missouri. Spencer, proceeding without an attorney, has filed a complaint asserting constitutional
claims pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971). [R. 2] Spencer alleges that while confined at the United States PenitentiaryMcCreary (“USP-McCreary”), located in Pine Knot, Kentucky, officers assaulted him and then
placed him in a cell for days without water, proper sanitation, or medical care.
Because Spencer has been granted permission to pay the filing fee in installments and asserts
claims against government officials, the Court conducts a preliminary review of his complaint. 28
U.S.C. §§ 1915(e)(2)(B), 1915A; McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997).
Because the plaintiff is not represented by an attorney, the complaint is reviewed under a more
lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573
(6th Cir. 2003). At this stage the Court accepts Spencer’s factual allegations as true and his legal
claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007). But the Court must dismiss a case at any time if it determines the action (a) is frivolous or
malicious, (b) fails to state a claim upon which relief can be granted, or (c) seeks monetary damages
from defendants who are immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint fails to
state a claim unless its sets forth sufficient factual matters which, if accepted as true, would allow
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged; it
is not enough to allege facts that are “merely consistent with” a defendant’s liability. Ashcroft v.
Iqbal, 552 U.S. 662, 678 (2009). Having reviewed the Complaint, the Court will require two
defendants to respond to Spencer’s excessive force claims but dismiss the remainder of his
constitutional claims, and deny his two pending motions.1
BACKGROUND
Spencer alleges that on August 21, 2009, eight of the defendants came to his cell, and that
Lieutenant Baker ordered him to “cuff up” because he was being moved to another cell. Spencer
alleges that Officer Cox opened the cell door, and, without warning, Lieutenant Terry Baker, Officer
Reams, and an unknown officer hit him in the back and sides and slammed him into the wall. [R.
2, pp. 5-6] Spencer states that he was then told that he was being placed in a multi-purpose room,
and that “. . . unless I ate, which I couldn’t do, an [sic] they all knew of my eating disorder. I was
put in a room with no water, no bunk, or toilet facilities for many days.” [Id., p. 6]
Spencer alleges that unidentified officers and Lieutenant Baker came to his room for days,
saying “it” (presumably his confinement in the multi-purpose room) would end if he ate. [Id.]
Spencer alleges that unidentified officers either denied him water or gave him water according to
1
Spencer moves for default judgment because the defendants did not file a response within
sixty days after he filed his complaint [R. 8] and requests an order compelling the defendants to
respond to his complaint. [R. 9] The first motion is without merit: the sixty day response time
required under Rule 12(a)(2) is triggered by service of the complaint, not the filing of it, and the
Court has not ordered service of the complaint pending completion of this initial screening. The
second motion is moot, the Court having ordered a response as described in this order.
2
their moods; denied him medical treatment for the injuries he sustained during the assault; denied
him ice; failed to properly treat his eating disorder; punished and abused him because of his mental
illness; and subjected him to “unnecessary and wanton infliction of pain and suffering.” [Id.]
DISCUSSION
Spencer’s allegations fall into seven different categories, discussed below.
(1)
Excessive force. Spencer alleges that Baker and Reams applied excessive force by
slamming him into a wall, which is a claim of cruel and unusual punishment inflicted in violation
of the Eighth Amendment to the United States Constitution. Spencer filed a grievance alleging that
Reams and Baker “abused” him by slamming him into a wall, and then placed him in a holding cell
with no bathroom or shower. [R. 2-2, pp. 2, 4, 6] Because this claim appears to be fully exhausted
and states a viable claim, the Court will order defendants Baker and Reams to file a response to it.
Because Spencer does not allege that any of the other six defendants applied excessive force against
him, his claim will be dismissed with respect to each of them.
(2)
Placement in Segregation. Spencer challenges his placement in the “multi- purpose”
room for several days, alleging that Lieutenant Baker told him that “it” (presumably, his confinement
in that room) would end “if I ate.” [R. 2, p. 6] Regardless of whether Spencer was placed in
administrative or disciplinary segregation, mere confinement in segregation does not constitute an
atypical and significant hardship which violates either the Due Process Clause of the Fifth
Amendment of the United States Constitution, or the Eighth Amendment of the United States
Constitution. Sandin v. Connor, 515 U.S. 472, 486 (1995); Minnifield v. Chandler, 2007 WL
4302694, at *4-5 (W.D. Ky. 2007); Sublett v. Vinson, 2008 WL 237656, at *4-6 (W.D. Ky. 2008);
see also Sheley v. Dugger, 833 F.2d 1420, 1428–29 (11th Cir. 1987) (placement in “administrative
3
segregation and solitary confinement do not, in and of themselves, constitute cruel and unusual
punishment,” citing Hutto v. Finney, 437 U.S. 678, 686 (1978)). This claim will be dismissed for
failure to state a claim upon which relief can be granted.
(3)
Conditions of Confinement in Segregation. Spencer alleges that he was placed in
a room with no water, bunk or toilet facilities for several days, a claim he appears to have exhausted.
[R. 2-2, p. 2] To prevail on a conditions-of-confinement claim, a prisoner must show that he
suffered an objective, sufficiently serious deprivation (i.e., one that results in the denial of the
minimal civilized measure of life’s necessities) and that prison officials were deliberately indifferent
to a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834, 842 (1994); Bellamy
v. Bradley, 729 F.2d 416, 419 (6th Cir.1984).
Spencer’s complaint about being denied access to a bathroom does not rise to the level of an
Eighth Amendment violation, as a short term or temporary placement in a cell without its own
bathroom facilities does not state an Eighth Amendment claim. Dellis v. Corrections Corp. of Am.,
257 F.3d 508, 511 (6th Cir. 2001); Hartsfield v. Vidor, 199 F.3d 305, 310 (6th Cir. 1999);
Abdur–Reheem–X v. McGinnis, 1999 WL 1045069, at *2 (6th Cir. 1999) (as to lack of flushable
toilet); Knop v. Johnson, 977 F.2d 996, 1013 (6th Cir. 1992) (same). For example, in Laster v.
Pramstaller, 2011 WL 4506956, (E.D. Mich. 2011), the prisoner alleged that the defendants failed
to provide him with handicap accessible showers and toilets for six months, and that some of the
prison staff members forced him to stay in a cell for four days with no running water or flushable
toilet, and poor air circulation. The court held that the prisoner failed to state an Eighth Amendment
claim because he did not allege that he faced risk of serious harm by the defendants’ failure to
provide him with handicap-accessible toilets and showers for a six month period. Id. at *12.
4
Nor does temporary placement in a cell without running water violate the Eighth
Amendment. Diaz v. Cumberland County Jail, 2010 WL 3825704, at *4 (D.N.J. 2010); Gibert v.
Anderson County Sheriff’s Office, 2007 WL 328840, at *8 (D.S.C. 2007) (collecting cases). Prisons
are not required to provide, nor can prisoners expect to receive, “the amenities, conveniences and
services of a good hotel.” Harper v. Kentucky Dept. of Corrections, 2007 WL 204002, at *3 (E.D.
Ky. 2007) (citation omitted). Spencer’s allegation that he was denied a bed for “many days” fails
to state a claim for relief absent any allegation that he suffered any concrete physical injury as a
result. Grissom v. Davis, 55 F. App’x. 756, 757 (6th Cir. 2003); Shaw v. Mangione, 27 F. App’x.
407, 407 (6th Cir. 2001); Jones v. Toombs, 1996 WL 67750, at *1 (6th Cir. 1996) (“The defendants
did not violate [the plaintiff’s] Eighth Amendment rights by depriving him of a mattress for a two
week period.”). This claim will likewise be dismissed for failure to state a cognizable claim.
(4)
Denied Medical Assessment/Treatment for Physical Injuries. Spencer alleges that
after he was forcibly removed from his cell, he was refused medical treatment for the injuries he
sustained as a result of the alleged excessive force. This claim will be dismissed for two reasons.
First, it is clear from the face of the Complaint and exhibits attached to it that Spencer did
not administratively exhaust this claim. Spencer indicates that he filed five inmate grievances.
[R. 2, pp. 8-9] In two of those, he alleged that he had been denied proper medical treatment for his
anorexia/eating disorder. [R. 2-2, p. 1, 19] Spencer did not, however, file a grievance complaining
that he had been denied medical treatment for injuries he allegedly suffered after the cell extraction
episode of August 21, 2009. Prisoners must administratively exhaust all administrative remedies
before filing suit asserting claims relating to the conditions of their confinement. 42 U.S.C. §
1997e(a); Woodford v. Ngo, 548 U.S. 81, 90–91 (2006). A court may dismiss a claim at the initial
5
screening stage where it is apparent from the face of the complaint that the prisoner did not satisfy
this requirement. See Clifford v. Louisiana, 2008 WL 2754737, at *3 (M.D. La. 2008); Whitaker
v. Gannon, 2007 WL 2744329, at *2 (S.D. Ohio 2007).
Second, this claim fails on the merits because Spencer does not indicate that any of the
named defendants were personally involved in the denial of medical care for his injuries; rather, he
alleges only that he was in pain from the injuries he sustained. A plaintiff must allege that the named
defendant performed the acts that resulted in the deprivation of his constitutional rights. See Rizzo
v. Goode, 423 U.S. 362, 375-76 (1976); Bivens, 403 U.S. at 390 n. 2; Williams v. Mehra, 135 F.3d
1105, 1114 (6th Cir. 1998). The plaintiff has the burden of pleading facts that, if true, will support
his claims that the defendants violated his constitutional rights. Brock v. Hamblen County Det. Ctr.,
2010 WL 4963012, at *4 (E.D. Tenn. 2010). While pro se litigants are entitled to some degree of
leniency, Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court is not required to engage in
unbridled speculation as to the nature or object of his claims. Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007); Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008); Kamppi v. Ghee, 2000 WL
303018, at *1 (6th Cir. 2000).
(5)
Denial of Water. Spencer alleges that for an unspecified period of time, he had to
beg for water, and that it was up to unidentified USP-McCreary officials to decide if they would
provide him with it. While water certainly qualifies as a basic necessity of life, as with his prior
claim Spencer has made no allegation that any named defendant was personally responsible for but
refused to provide him with such sustenance. Such vague and conclusory allegations lack facial
plausibility because the plaintiff has not “plead[ed] factual content that allows the court to draw the
6
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The claim must therefore be dismissed.
(6)
Denial of Medical Treatment for a Psychological Eating Disorder.
Spencer
alleges that he was denied proper medical treatment for anorexia, an eating disorder from which he
suffered for many years.2 This claim will be dismissed for several reasons.
First, Spencer failed to identify which, if any, of the defendants allegedly denied him proper
medical treatment. That failure prevents the Court from determining which, if any, of the named
defendants should be served.
Second, to the extent that Spencer may be claiming that former warden Wilson, Assistant
Wardens Smith and McCloud, and HSA Gregory and Jones, denied him proper medical treatment
for his anorexia, he fails to state a claim. These defendants serve in administrative capacities within
the prison system - they are not treating physicians, and hence are not personally involved with
providing medical care to prisoners, and lack authority to override the treating physician’s decisions
setting a prescribed course of treatment for prisoners. Estate of Young v. Martin, 70 F. App’x 256,
260-61 (6th Cir. 2003) (complaints about the medical care an inmate received did not establish
personal involvement by a warden); Brock v. Wright, 315 F.3d 158 (2d Cir. 2003) (warden’s lack
of medical training warranted reliance upon medical director’s trained medical decisions regarding
prisoner’s care); Stewart v. Murphy, 174 F.3d 530, 536 (5th Cir. 1999); Camberos v. Branstad, 73
2
Spencer filed two administrative remedies concerning this issue. In Administrative
Remedy No. 560913, Spencer alleged that because USP-McCreary’s Psychology Services was not
staffed with a person with specialty training in eating disorders, he was denied proper medical
treatment for his eating disorder. [R. 2-3, pp. 1, 2, 4, and 5] In Administrative Remedy No. 575275,
Spencer alleged that by refusing to tube-feed him, USP-McCreary medical staff members were
deliberately indifferent to his eating disorder. [R. 2-2., pp. 18-24]
7
F.3d 174, 176 (8th Cir. 1995); Warren v. Epps, 2011 WL 3349829, at *6, (S.D. Miss. 2011);
McIntosh v. Beighley, 2011 WL 1364208, at *3 (S.D. Ind. 2011).
Third, to the extent that Wilson, Smith, McCloud, Gregory, and Jones may have held
supervisory administrative positions, liability cannot be imposed on them for the decisions of
subordinate employees under the doctrine of respondeat superior. Ashcroft, 556 U.S. at 677; Shehee
v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Nor is merely denying a grievance sufficient to
impose personal liability upon a prison administrative official. Shehee, 199 F.3d at 300; Alder v.
Corr. Medical Services, 73 F. App’x. 839, 841 (6th Cir. 2003).
Fourth and finally, the documents and medical records attached to the complaint reveal that
none of the defendants were deliberately indifferent to Spencer’s serious medical needs. The Eighth
Amendment is violated only where a prison official is actually aware of the prisoner’s medical needs
and consciously chooses, through action or inaction, to disregard a serious risk to the inmate’s health.
Flanory v. Bonn, 604 F.3d 249, 253 (6th Cir. 2010). Allegations that merely state or suggest that
the official was negligent in diagnosing or treating a medical condition does not state a viable claim
of medical mistreatment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
On June 29, 2009, Dr. Richard Ramirez examined and evaluated Spencer, who had lost 40
pounds and refused to eat, and diagnosed him as having Axis II Antisocial Personality Disorder,
lumbar spondylosis with myelopathy,3 and an unspecified Axis I eating disorder. [R. 2-2, pp. 28-29]
During that session, Ramirez noted Spencer saying that when he had previously been confined in
3
Spondylosis is defined as any of several degenerative diseases of the spine. Webster’s
Medical Dictionary, New Edition, p. 711 (2006). Myelopathy is defined as any disease or disorder
of the spinal cord or bone marrow. Id. at p. 481.
8
FCI-Butner, a federal prison in North Carolina, he had been “tube-fed.” [Id., p. 28] Spencer then
began a self-declared hunger strike, refusing to eat solid food. [Id., p. 30]
Between October 2009 and January 2010, Spencer repeatedly refused the medical evaluation
and treatment offered to him, frequently demanding to be tube-fed. See “Medical Treatment
Refusals,” [Id., pp. 31-36; pp. 47-50] In February 2010, the prison medical staff began force-feeding
Spencer through a nasal feeding tube. See “Clinical Encounter-Administrative Note,” [Id., p. 25];
Eichenlaub Response to BP-10 appeal, [Id., p. 22].
On August 26, 2010, the prison medical staff transferred Spencer to FMC-Springfield for
intensive medical management. See Watts Response to BP-11 appeal, [Id., p. 19] The Springfield
medical staff continued to follow hunger strike protocols until August 31, 2010, at which time
Spencer agreed to eat cold foods. [Id.] The Springfield medical and psychology staff continued
working with Spencer to help him regain his health, and by November 5, 2010, his weight had
increased to 163 pounds, up from 111 pounds on August 31, 2010.
Based on these facts, the prison staff actively counseled Spencer and treated his eating
disorder as much as Spencer would permit. On numerous occasions the USP-McCreary medical
staff attempted to continue treating Spencer, but he repeatedly refused the medical treatment, and
acknowledged in writing the adverse consequences of doing so. The USP-McCreary medical staff
transferred Spencer to FMC-Springfield for intervention and treatment when he continued to refuse
to eat solid food. Such repeated and ongoing efforts to address Spencer’s self-inflicted medical
condition and eating disorder is the antithesis of deliberate indifference.
Spencer does not allege that he was denied any medical treatment for his eating disorder, he
alleges only that he desired a different form of treatment, i.e., to be fed through a nasal tube. “Where
9
a prisoner has received some medical attention and the dispute is over the adequacy of the treatment,
federal courts are generally reluctant to second guess medical judgments and to constitutionalize
claims which sound in state tort law.” Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976);
see, e.g., Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995); Simpson v. Ameji, 57 F. App’x 238,
239 (6th Cir. 2003). A difference of opinion between a prisoner and the prison medical staff as to
the nature and extent of treatment does not qualify as deliberate indifference under the Eighth
Amendment. Westlake, 537 F.2d 860, n.5; see also Wilson v. Wilkinson, 2003 WL 1795812, at *1
(6th Cir. 2003); Wooley v. Campbell, 63 F. App’x 789, 790 (6th Cir. 2003); Durham v. Nu’Man, 97
F.3d 862, 869 (6th Cir. 1996); Sharpe v. Patton, 2010 WL 227702, at *11 (E.D. Ky. 2010);
Alexander v. Federal Bureau of Prisons, 227 F. Supp.2d 657 (E.D. Ky. 2002).
Spencer’s disagreement with the prison medical staff’s refusal to tube-feed him is, at best,
a claim that sounds in professional malpractice or negligence, not deliberate indifference. Medical
malpractice is not an Eighth Amendment violation. Therefore, Spencer fails to state a cognizable
Eighth Amendment deliberate indifference claim as to his eating disorder. 28 U.S.C. § 1915(e)(2)(ii).
(7)
Filing of False Disciplinary Charges. Spencer alleged that he was “punished an
[sic] abused because of my mental illness. . . .” [R. 2. p. 6] On November 5, 2009, Senior Officer
“J.” Ross filed an Incident Report against Spencer, charging him with “Refusing to Accept a
Program Assignment” in violation of a BOP Code No. 306. Spencer alleged that Ross charged him
with the offense because he (Spencer) was mentally ill; that Ross knew that the disciplinary charge
was false; and that Ross knew that the charge would later be dismissed.
The Unit Disciplinary Committee found Spencer guilty of the infraction and revoked his
commissary privileges for thirty days. [R. 2-3, p. 40] Spencer appealed, and on September 9, 2010,
10
the BOP Central Office informed Spencer that the Incident Report had been expunged and removed
from his Chronological Disciplinary Record, but explained that by filing the Incident Report, the
reporting staff member complied with internal BOP policies concerning inmate discipline matters,
and that the subsequent expunction of the Incident Report was not evidence of staff misconduct.
[Id., p. 31] Spencer’s claim alleging the filing of a false disciplinary charge fails for two reasons.
First, a Fifth Amendment procedural due process claim depends upon the existence of a
constitutionally cognizable liberty or property interest with which the government has interfered.
Mitchell v. Horn, 318 F.3d 523, 531 (3rd Cir. 2003); Guerra v. Scruggs, 942 F.2d 270, 277 (4th Cir.
1991). A prison disciplinary proceeding does not give rise to a protected liberty interest unless the
restrictions imposed constitute an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. at 484. The loss of commissary
privileges, especially for a short term, does not constitute an atypical and significant hardship in the
context of prison life, because inmates have no federal constitutional right to purchase items from
a commissary. Dotson v. Calhoun County Sheriff’s Department, 2008 WL 160622, at *4 (W.D.
Mich. 2008); Tokar v. Armontrout, 97 F.3d 1078, 1083 (8th Cir.1996) (“we note that we know of
no constitutional right of access to a prison gift or snack shop.”); Hopkins v. Keefe Commissary
Network Sales, 2007 WL 2080480, at *5 (W. D. Pa. 2007).
Second, the act of filing false disciplinary charges does not itself violate a prisoner’s
constitutional rights. See Freeman v. Rideout, 808 F.2d 949, 952-53 (2d Cir. 1986) (“the mere filing
of [a false] charge itself” does not constitute a cognizable claim under § 1983 so long as the inmate
“was granted a hearing, and had the opportunity to rebut the unfounded or false charges”). In this
case, Spencer was granted a UDC hearing at which he had an opportunity to rebut the charge filed
11
against him. Spencer did not allege any procedural infirmities in connection with the UDC hearing.
Spencer successfully had the Incident Report expunged from his disciplinary record, but under
Freeman, he states no actionable Fifth Amendment claim based on Ross allegedly filing false
charges against him in the Incident Report. See Freeman, 808 F.2d at 952-53; see also McMillan v.
Fielding, 136 F. App’x. 818, 820 (6th Cir. 2005) (where the prisoner was sanctioned with 10 days
in lock up and the loss of package privileges, the disciplinary hearing afforded him a sufficient
means of challenging allegedly false disciplinary charges brought against him); Vaughn v. Wilson,
1987 WL 44490, at *1 (6th Cir. 1987) (affirming dismissal of a 42 U.S.C. § 1983 civil rights action
where the district court determined that the prisoner-plaintiff lacked a constitutional right to the
expungement of information in his prison file). Spencer’s allegation that false disciplinary charges
were intentionally filed against him in violation of the Fifth Amendment will be dismissed for failure
to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(ii).
CONCLUSION
Accordingly, IT IS ORDERED as follows:
1.
Spencer’s motion for default judgment [R. 8] is DENIED.
2.
Spencer’s motion to compel the defendants to answer the complaint [R. 9] is
DENIED as MOOT.
3.
Spencer’s claims related to (a) his placement in segregation; (b) the conditions of his
confinement in segregation; (c) medical treatment of his injuries received on August 21, 2009; (d)
the denial of water and other beverages; (e) medical treatment of his anorexia/eating disorder; and
(f) the filing of an allegedly false disciplinary charge against him, are DISMISSED WITH
PREJUDICE.
12
4.
Spencer’s excessive force claims against all defendants, except defendants Terry
Baker and Reams, are DISMISSED WITH PREJUDICE.
5.
Spencer’s constitutional claims against the following eighteen USP-McCreary
Defendants, Eric D. Wilson, former Warden; “McCloud,” Assistant Warden; “Smith,” Assistant
Warden; “Willard,” Psychologist; Millisa Gregory, Health Services Administrator; “Jones,” Health
Services Administrator; “A.” Bryant, Physician’s Assistant; Richard Ramirez, Physician;“Rush,”
Head of Psychology; “Reinwald,” Psychologist; “Baker,” Physician’s Assistant; “Caldell,”
Physician’s Assistant; “Boggs,” Head of Education; “R.” Woods, Case Worker; “W.” Wood, Case
Worker; “Anderson,” Case Worker; “J.” Tucker, Case Worker; and “S.” Sims, Counselor, are
DISMISSED WITH PREJUDICE and the Clerk of the Court shall note in the CM/ECF cover
sheet that these defendants are TERMINATED from this action.
6.
Defendants Lieutenant Terry Baker and Correctional Officer Reams shall respond
to Spencer’s Eighth Amendment excessive force claims, and the Clerk of the Court shall issue
summons for Terry Baker and Correctional Officer Reams in their individual capacities.
7.
For defendants Baker and Reams, the Clerk of the Court shall prepare “Service
Packets” consisting of the following documents:
a.
Completed summons forms;
b.
Complaint [R. 2] and all attachments thereto;
c.
This Memorandum Opinion and Order; and
d.
Completed United States Marshals Service (“USMS”) Forms 285 for
each defendant to be served.
13
If the Clerk is unable to accurately complete any of the documents described above, the
Clerk shall set forth the reason in a docket entry.
8.
For both defendants to be served, the Clerk shall prepare three (3) Service Packets
to be provided to USMS in Lexington, Kentucky, addressed as follows:
a.
to the Civil Process Clerk at the Office of the United States Attorney for the
Eastern District of Kentucky;
b.
to the Office of the Attorney General of the United States in Washington,
c.
to Baker and Reams at the United States Penitentiary - McCreary in Pine
D.C.; and
Knot, Kentucky.
9.
The London Clerk shall send by certified mail the required Service Packets for both
of the defendants to USMS in Lexington, Kentucky, and enter the certified mail receipt into the
record, noting in the docket the date that the Service Packet was delivered to the USMS.
10.
The USMS shall serve both of the identified defendants by:
a.
Sending a Service Packet for both defendants by certified or registered mail
to the Civil Process Clerk at the Office of the United States Attorney for the Eastern District of
Kentucky;
b.
Sending a Service Packet for both defendants by certified or registered mail
to the Office of the Attorney General of the United States in Washington, D.C.; and
c.
Personally serving a Service Packet upon Baker and Reams at the United
States Penitentiary - McCreary in Pine Knot, Kentucky, through arrangement with the Bureau of
Prisons.
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11.
Spencer must advise the London Clerk’s Office of any change in his current mailing
address. Failure to do so may result in dismissal of this case.
12.
Spencer must communicate with the Court solely through notices or motions filed
with the London Clerk’s Office.
12.
For every further pleading or other document he wishes to submit to the Court,
Spencer shall serve upon each defendant, or, if appearance has been entered by counsel, upon each
attorney, a copy of the pleading or other document. Spencer shall send the original papers to be
filed with the Clerk of the Court together with a certificate stating the date a true and correct copy
of the document was mailed to each defendant or counsel.
13.
The Court will disregard any document which has not been filed with the Clerk of the
Court; which has been filed but fails to include the certificate of service of copies; or which has been
sent directly to the Judge’s chambers.
This June 8, 2012.
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