Perry v. Agricultural Dept. et al

Filing 23

MEMORANDUM OPINION AND ORDER: 1. All claims asserted by Pla Oceanus Perry against the listed dfts in both their official and individual capacities are DISMISSED WITH PREJUDICE, ***See Order for complete list*** 2. Perry's federal consti tutional claims against the Agricultural Dept, the Dept of Justice, the BOP, and the Nat'l Institute of Corrections are DISMISSED WITH PREJUDICE, and these dfts are TERMINATED from this action. 3. Perry's claims alleging violations o f 18 U.S.C. §§ 4, 241, 1001, 151213, 1702, 2234, 2244, 2246, 3621, 4042, and 4352 are DISMISSED WITH PREJUDICE. 4. Perry's requests for injunctive relief [See Record Nos. 1 , 19 , 21 .] are DENIED WITH PREJUDICE. 5. Perrys federal constitutional claims against Dfts Lt Leroy Chaney, Lt "D." Weiss, Lt Ultizer, Lt Fowler, and Nurse Sumer, in their OFFICIAL CAPACITIES, are DISMISSED WITH PREJUDICE. 6. The following dfts, in their INDIVIDUAL CAPACITIES, ar e required to respond to Perry's Bivens Complaint as to the following claims: (a) Lt Leroy Chaney must respond to Perry's claim of alleged retaliation on 5/1/14; (b) Lt "D." Weiss must respond to Perry's claim of alleged r etaliation on 5/1/14; (c) Lt Ultizer must respond to Perry's Eighth Amendment allegation of excessive force and his state-law claim of battery on 6/27/14; (d) Lt Fowler must respond to Perry's Eighth Amendment claim that he denied Perry medical treatment on 6/28/14; and (e) Nurse Sumer must respond to Perrys Eighth Amendment claim that she denied him medical treatment on 6/28/14. 7. A Clerk in the London Clerk's Office shall prepare a "Service Packet" for thes e five dfts. The Service Packet shall include: a.-d. 8. The Deputy Clerk shall send the Service Packets to the USMS in Lexington, KY. 9. For each dft to be served, the USMS shall serve them by: a. Sending a Service Packet by certified or regis tered mail to the Civil Process Clerk at the Office of the US Attorney for the EDKy; b. Sending a Service Packet by certified or registered mail to the Attorney General of the US in Washington, D.C.; and c. Personally serving the dfts with a Se rvice Packet through arrangement with the FBOP. 10. The USMS is responsible for ensuring that the dfts are successfully served with process. 11. W/in 40 days of the DOE of this Order, the USMS Office shall send a Service Report to the Londo n Clerks Office, which the Clerk shall file in the record, stating whether service has been accomplished with respect to the dft. 12. Perry must immediately advise the London Clerk's Office of any change in his current mailing addres s. FAILURE TO DO SO MAY RESULT IN THE DISMISSAL OF THIS ACTION. Perry must communicate with the Court SOLELY through notices or motions filed with the London Clerk's Office. THE COURT WILL DISREGARD CORRESPONDENCE SENT DIRECTLY TO THE JUDGE& #039;S CHAMBERS. 13. With every notice or motion filed with the Court, Perry MUST: (a) mail a copy to each dft (or his or her attorney); and (b) at the end of the notice or motion, certify that he has mailed a copy to each dft (or his or her attor ney) and the date on which this was done. THE COURT WILL DISREGARD ANY NOTICE OR MOTION WHICH DOES NOT INCLUDE THIS CERTIFICATION. 14. The Clerk shall transmit a copy of this Memorandum Opinion and Order to the Clerk of 6CCA, referencing Case No. 15-5212. Signed by Judge Danny C. Reeves on 04/16/2015.(KJA)cc: COR, 6CCA, mailed paper copy to pro se filer Modified text on 4/17/2015 (KJA).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
OCEANUS PERRY,
Plaintiff,
V.
AGRICULTURAL DEPT., et al.,
Defendants.

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Civil Action No. 6: 14-168-DCR

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
Plaintiff Oceanus Perry is an inmate confined by the Bureau of Prisons (“BOP”) at
the United States Penitentiary (“USP”)-McCreary, in Pine Knot, Kentucky. Proceeding
without an attorney, Perry has filed a Complaint asserting various tort and constitutional
claims under 28 U.S.C. § 1331 pursuant to the doctrine announced in Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971), against fifty-one defendants.1 [Record No. 1] The
Court granted Perry’s motion to proceed in forma pauperis by separate order. [Record No. 11]
1
Perry named the following defendants: (1) Agricultural Department; (2) Department of Justice; (3)
United States Attorney General; (4) Bureau of Prisons; (5) National Institute of Corrections; (6) J.C. Holland,
Warden, USP-McCreary; (7) Captain Christopher Maruka; (8) Ronald Corriveau, Special Investigative Services
(“SIS”) Agent; (9) Todd Lambert, Human Resources Manager; (10) Lieutenant Carol, SIS Agent; (11)
Lieutenant Leroy Chaney, SIS Agent; (12) Lieutenant Fowler; (13) Lieutenant Huberty; (14) Lieutenant
William Duck; (15) David Mullins; (16) Lieutenant Mark Dixon; (17) Lieutenant D. Weiss; (18) Richard
Parson; (19) Lieutenant Ultizer; (20) Lieutenant Baker; (21) “Stevens,” Health Services Administrator; (22)
“B.” Barron, Health Services Administrator; (23) “Davis,” Physician Assistant; (24) “Baker,” Physician
Assistant; (25) Nurse Stevens; (26) Nurse Sumer; (27) Pamela Poston, Unit Manager; (28) Mrs. Jameson, Case
Manager; (29) Mr. Lawson, Unit Counselor; (30) Shelia L. Mattingly, Mailroom Supervisor; (31) Mr. Vires,
Mailroom Employee; (32) Officer Brown, Special Housing Unit (“SHU”) Property Officer; (33) Officer R.
Thurman, SHU Property Officer; (34) Officer L. Brown; (35) Officer Barnett; (36) Officer D. Gardner; (37)
Officer A. Rose; (38) Officer David Taylor; (39) Gary Mehler, Disciplinary Hearing Officer; (40) Richard B.
Ives, Former Warden, USP-McCreary; (41) “Dr. Velaspues” or “Dr. Valasquez;” (42) E.M.T. Christopher
Griffis; (43) Dr. Lemon, “Psy.” Department; (44) Dr. Peterson, “Psy.” Department; (45) Dr. Figuroa, “Psy.”
Department; (46) “H. Quay,” Former Associate Warden; (47) Staff, Federal Transit Center (“FTC”)-

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The Court has conducted a preliminary review of Perry’s Complaint because he
asserts claims against a government official and because he has been granted pauper status.
28 U.S.C. §§ 1915(e)(2)(B), 1915A. Because Perry is not represented by an attorney, the
Court liberally construes his claims and accepts his factual allegations as true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
For the reasons set forth below, certain claims against five defendants2 may proceed, but the
remaining defendants will be dismissed from this action.
I.
Perry is serving several consecutive terms of imprisonment imposed in separate
criminal cases. On September 2, 2003, in Cleveland, Ohio, Perry was sentenced to a 128month prison term for armed bank robbery. United States v. Oceanus Perry, No. 4: 02-CR-92SL-1 (N. D. Ohio 2002) [Record No. 63, therein; aff’d, Record No. 77, therein]. On April 11,
2006, in Columbus, Ohio, Perry was sentenced to a 63-month prison term based on his
convictions for bank robbery and for the illegal use of firearms. United States v. Oceanus Perry,
No. 4:02-R-92-SL-1 (N. D. Ohio 2002) [Record No. 52, therein; aff’d, Record No. 73,
therein; see also United States v. Oceanus Perry, No. 06-3514, 228 F. App’x 557 (6th Cir. April 13,
2007).].
In October 2007, Perry and three other inmates were indicted on several criminal
charges in connection with an incident at USP-McCreary on September 17, 2007. United
Oklahoma, Oklahoma City, Oklahoma; (48) Lieutenant Daniels; (49) Dr. Kahn; (50) Officer “D.” Brush; and
(51) Officer “Lessner” and/or “Lesser.”
2
Perry has been granted pauper status. As a result, the United States Marshals Service (“USMS”) will
be instructed to serve the five defendants with the summons and Complaint on his behalf. See Fed. R. Civ. P.
4(c)(3); 28 U.S.C. § 1915(d).

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States v. Oceanus Perry, No. 7:07-CR-23-GFVT-EBA (E.D. Ky. 2007); [Record No. 1, therein].
On March 19, 2008, the jury convicted Perry on charges of assaulting a federal law
enforcement officer and aiding and abetting in violation of 18 U.S.C. §§ 2 and 111(a)(1) and
(b), and of being an inmate in possession of a prohibited object under 18 U.S.C. § 1791(a)(1).
[Record No. 205, therein] Consequently, on September 30, 2008, Perry was sentenced to a
225-month prison term, to be served consecutively to his prior Ohio sentences. [Record
No. 263, therein] Perry’s conviction and sentence were affirmed on appeal. [Record No.
291, therein; see also United States v. Oceanus Perry, No. 08-6219, 401 F. App’x 56 (6th Cir. Nov.
4, 2010).]3
II.
The following is a summary of the allegations set out in Perry’s Complaint.4
A. Alleged Events at FTC-Oklahoma in 2011
On November 29, 2011, Perry arrived at the Federal Transfer Center in Oklahoma
City, Oklahoma (“FTC-Oklahoma), but was separated from other intake inmates because
“he was being housed in [the Special Housing Unit (“SHU”)] due to a 2007 assault in
Kentucky.” [Record No. 1, p. 11, ¶¶ 84–85] Perry states that he was “subjected to metal
detectors and X-ray body scans due to suspicion of alleged contraband,” that he was placed
3
The BOP’s website indicates that Perry, BOP Register No. 65754-061, has a projected release date of
September 7, 2051. See http://www.bop.gov/inmateloc/ (last visited April 14, 2015).
4
Perry begins his Complaint by describing events which allegedly occurred at USP-McCreary between
June 14 and 30, 2014. [Record No. 1, pp. 7–11] Midway through his Complaint, he shifts to describing
events which allegedly occurred on November 29, 2011, in the Federal Transfer Center in Oklahoma City,
Oklahoma (“FTC-Oklahoma”). [Id., pp. 11–13] Perry then describes incidents which he alleges occurred at
USP-McCreary in early December 2012, and during the years of 2012 and 2013. [Id., pp. 13–17] Towards the
end of his Complaint, Perry describes incidents which he alleges occurred at USP-McCreary in 2014. [Id., pp.
17–21] For clarity, the Court has summarized Perry’s factual allegations in chronological order, beginning on
November 29, 2011, and continuing through June 2014.

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in an observation cell, and forced to wear body restraints. [Id., ¶¶ 86-91] When Perry
refused to sign a statement and form acknowledging his consent to a “digital and instrument
rectal” search, prison officials informed Perry that his consent was not required because the
BOP Regional Director had approved the rectal search. [Id., pp. 11–12, ¶¶ 91–94] Then,
Perry claims, an unidentified prison official grabbed him by the back of the neck, forced him
onto the table, and a doctor and other prison officials performed a physical rectal search.
[Id., p. 12, ¶¶ 96–99] According to Perry, FTC-Oklahoma officials did not attempt less
intrusive means to conduct the search. [Id., ¶ 95]
Perry alleges that the search did not produce any contraband.

[Id., ¶ 100]

Nonetheless, Lieutenant Daniels allegedly stated that the rectal examination “would be
repeated until contraband was found.” [Id., ¶ 101] Perry asserts that Lieutenant Daniels and
several other unknown officers then conducted a metal detector and X-ray body scan, which
produced negative results. [Id., pp. 12–13, ¶¶ 104–05] While Lieutenant Daniels was
escorting the restrained Perry back to the observation cell, Lieutenant Daniels struck him in
the groin. Perry further alleges that Officer “Lesser” or “Lessner” and other unidentified
prison staff members threatened him, taunted him, and made sexual comments about the
rectal search. [Id., p. 13, ¶¶ 106–07] Perry also claims that when he returned to the
observation cell, he was strip-searched and ordered to submit to a urine analysis. [Id., ¶ 109]
Perry claims that he was escorted to the SHU, where he requested medical treatment due to
excessive rectal bleeding. [Id., ¶ 110]

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B. Alleged Events at USP-McCreary from December 1, 2011, to February 2012
Perry contends that, on December 1, 2011, he was returned to USP-McCreary, and
that during intake screening, he “gave notice” of the alleged events on November 29, 2011,
to Mrs. Read, the Unit 3 Case Manager; Dr. Figuroa; Special Investigative Services (“SIS”)
Lieutenant Baker; and Operations Lieutenant William Duck. [Record No. 1, p. 13, ¶ 112]
Perry states that he informed EMT Christopher Griffis that he was experiencing “rectal pain,
swelling of the testicle, and lower back pain.” [Id., pp. 13–14, ¶¶ 115–16] Griffis allegedly
responded that Physician Assistant Baker, his health care provider, would handle his medical
complaints as part of his institutional orientation. [Id.]
Perry claims that SIS Agent Ronald Corriveau interviewed him “near Monday,”
(presumably, Monday, December 3, 2012), but that Corriveau declined to take his statement
because FTC-Oklahoma Lieutenant Daniels had filed a report about the incident on
November 29, 2011. [Id., p. 14, ¶ 119] Perry contends that, on December 20, 2011, an
individual named Henekis Stoddard mailed him a copy of his statement concerning the
alleged events of November 29, 2011, but that the USP-McCreary mailroom staff gave the
mail to SIS staff, so Perry never received it. [Id., ¶ 120]
Perry alleges that on December 13, 2011, “Dr. Velaspues”5 came to his SHU Cell,
asked him his BOP Register Number, and walked away, claiming that he had conducted a

5
Perry identifies this defendant as either “Dr. Valaspues” and/or “Dr. Velazquez,” but he may be
referring to Dr. Jorge Vazquez-Velazquez. The Court takes judicial notice of recent pleadings from other
civil actions filed in this district which document that Dr. Jorge Vazquez-Velazquez is the Regional PhysicianClinical Consultant at USP-McCreary. See Macleod v. Grajales, No. 6:13-CV-188-DCR (E. D. Ky. 2013)
[Record No. 25-2, therein (Declaration of Dr. Jorge Vazquez-Velazquez)].

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“chronic care” consultation. [Id., ¶ 121]6 Perry asserts that Physician Assistant Baker did
not see him until January 2012.

When he complained to Baker about his medical

complications resulting from alleged events of November 29, 2011, Baker responded that
she would not treat him because her computer showed no medical report. [Id., pp. 14–15,
¶¶ 123–24]
Perry also alleges that, on January 11, 2012, while he was confined in the SHU at
USP-McCreary, he discovered that several items of his personal property were missing. The
USP-Allenwood staff had inventoried and mailed these personal items to him.

Perry

complained to “R & D” Supervisor Sheila Mattingly and filed a tort claim. The tort claim
was denied, according to Perry, because Lieutenant Thornburg lied about the receipt
associated with the missing property. [Id., p. 16, ¶¶ 132–35]
Perry also claims that, in February 2012, UPS-McCreary Warden Richard B. Ives,
Associate Warden Quay, Captain Christopher Maruka, and SIS Agent Ronald Corrivuea
signed a “correspondence rejection notice,” which allegedly stated that he would not be
allowed to receive mail because he was a “terrorist and a police assaulter.” [Id., p. 15, ¶¶
125–27]

Perry states that the BOP’s inmate classification scheme does not include

“terrorist” and he has not been convicted of crime involving terrorism. Perry asserts that
the inaccurate notice was mailed to several individuals, including Henekis Stoddard, who
stopped contacting him as a result. [Id., ¶¶ 128–29] Perry alleges that he filed a grievance
with Warden Richard B. Ives and USP-McCreary Mailroom Supervisor Sheila Mattingly.
[Id., ¶ 130] Mattingly purportedly responded that the SIS collected Perry’s mail, screened it,
6
Perry contends that he did not receive his scheduled quarterly chronic-care consultation until July
2012. [Id., ¶ 122]

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and returned the mail several days later. The mailroom staff allegedly discards any mail that
has a postmark of more than ten days earlier. [Id., ¶ 131]
C. Alleged Events at USP-McCreary from June 2012 to August 2012
Perry asserts that Lieutenant Daniels, located at FTC-Oklahoma, issued Incident
Report No. 2239424 regarding the alleged events on November 29, 2011. [Record No. 1, p.
16, ¶ 136] While somewhat unclear, it appears that Lieutenant Daniels charged Perry with
possessing contraband at FTC-Oklahoma. [Id., ¶ 140] In June 2012, Gary Mehler, a
Disciplinary Hearing Officer (“DHO”) at USP-McCreary, presided over the disciplinary
hearing. Perry claims that he produced staff memoranda showing that Incident Report No.
2239424 was “fraudulent.” [Id., ¶¶ 137–39] However, allegedly acting on instructions from
Captain Maruka, DHO Mehler refused to dismiss the Incident Report. [Id.] Instead, DHO
Mehler postponed the hearing, stating that he needed to talk to Captain Maruka about the
charge. [Id.] In early July 2012, Lieutenant Baker served Perry with revised Incident Report
No. 2239424 which asserted that FTC-Oklahoma SIS staff, not Lieutenant Daniels, had
discovered contraband in a different location. [Id., ¶ 140]
In August 2012, Perry was found guilty of the offense charged in the revised Incident
Report No. 2239424. On the same day, Captain Maruka released him from the SHU, where
he had been confined for nine months. [Id., ¶ 141] Perry appears to allege that, as a result of
Incident Report No. 2239424, “he was sanctioned which extended the term of his sentence.”
[Id., p. 19. ¶ 165] In other words, Perry lost good-time credits (“GTC”) as a result of his
disciplinary conviction based on the November 29, 2011 incident.

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D. Alleged Events at USP-McCreary in May 2013
Perry further alleges that in late May 2013, SIS Agent Lieutenant Carol and
Lieutenant “D.” Mullins placed him in the SHU because he refused to provide information
on his “associates.” He remained in the SHU from Friday until Tuesday, without receiving a
copy of a lock-up authorization, Incident Report, or report from a Segregation Review
Officer. [Record No. 1, p. 17, ¶¶ 142–43] Perry also claims that when he was sent to the
SHU, Officer Barnett and an unknown officer inventoried and packed his personal property.
Perry claims that, after he was released from the SHU, he noticed that several items of
property were “missing” from the inventory list and that Officer Barnett had those items in
his possession. [Id., ¶¶ 144–46] Perry notified former Warden J. C. Holland, who instructed
Lieutenant Huberty to investigate, but no investigation was conducted. [Id., ¶ 147]
E. Alleged Events at USP-McCreary between January 13, 2014, and February 5,
2014
Perry also claims that on January 13, 2014, Officer David Taylor searched Perry’s cell
(No. 209 in Unit 6A). An officer informed Perry that “Taylor said he found a piece of metal
in the light.” [Record No. 1, p. 17, ¶¶ 148–49]

Perry and his cellmate were called to the

office of Lieutenant “D.” Mullins, who informed them that contraband metal was found in
the light in the cell. Perry and his cellmate were then taken to the SHU. [Id., ¶¶ 150–51] On
January 14, 2014, Lieutenant Mark Dixon served Perry with Incident Report No. 2530713,
charging him with attempting to manufacture a weapon based on the discovery of metal
inside a shoe. [Id., p. 18, ¶¶ 152, 154] The disciplinary process was suspended, however,
pending a referral of the charge to the Federal Bureau of Investigations (“FBI”). [Id., ¶ 152]
Perry asserts that the Incident Report did not describe the shoe in which the metal piece was
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allegedly found. [Id. ¶ 154] Perry alleged, in a Notice to the Warden, that Officer Taylor had
planted evidence, falsified the Incident Report, and was responsible for the loss of his
personal property. [Id., ¶ 153]
Perry states that on January 22, 2014, Lieutenant Richard Parsons informed Perry that
Warden J.C. Holland had authorized him to seize all of Perry’s personal property, including
paper and pens, because Perry was attempting to file a “private administrative remedy.” [Id.,
¶ 155–56] Perry claims that, on that same date, he requested “copies of the institutional
referral document and the FBI rejection notice.” [Id.]
On January 27, 2014, the Unit Disciplinary Committee (“UDC”) conducted a hearing
on the charge set forth in Incident Report No. 2530713. Perry requested that the UDC
dismiss the Incident Report due to noncompliance with UDC procedures. [Id., ¶ 157] And
when the matter was not dismissed, he asked Unit 4A Case Manager “B.” Chitwood to
review the camera from Unit 6A to prove that (1) Officer David Taylor had engaged in
improper conduct while searching his cell on January 13, 2014, and (2) Taylor “never called
staff to witness the object allegedly found and where it was allegedly found.” [Id., pp. 18–19,
¶ 158]
On February 3, 2105, Perry mailed a certified letter to Warden Holland allegedly
providing

evidence in support of his claims against Officer David Taylor, “and an

institutional appeal.” [Id., p. 19, ¶ 159] Perry was told that his certified mailing was lost;
however, on February 6, 2014 (the day after his disciplinary hearing), USP-McCreary
mailroom official “Vires” claimed that the letter had “popped up” on her desk. [Id., ¶ 162]

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On February 5, 2014, DHO Gary Mehler found Perry guilty of the offense charged in
on Incident Report No. 2530713. [Id., ¶ 161] Perry challenges the finding, claiming that no
photographic evidence of the shoe in question existed. He also alleges that DHO Mehler
lied “when he stated that inmates did not request camera review because footage had been
destroyed before the hearing” and “when he said he possessed a copy [of] F.B.I. and
rejection documents.” [Id., ¶ 164] Perry again provides no specifics about the sanction(s)
imposed, but states, “[s]imilar to being found guilty to incident report 2239424, when Inmate
Perry was found guilty of incident report 2530713, he was sanctioned which extended the
term of his incarceration.” [Id., ¶ 165] Thus, Perry apparently lost an unspecified amount of
GTC as part of his penalty. Perry appealed his conviction on Incident Report No. 2530713,
based on the lack of referral documents from the FBI, but claims that his “regional appeal”
was denied on May 1, 2014. [Id., pp. 19–20] Perry contends that “an unofficial USPMcCreary F.B.I. referral document” was created on May 17, 2014. [Id.] Perry does not
indicate whether he appealed the regional office’s decision to the BOP Central Office.
F. Alleged Events at USP-McCreary between April 26, 2014, and May 1, 2014
Perry also claims that, on April 26, 2014, Officer “A.” Rose improperly seized items
of his personal property without a “confiscation form.” When Perry asked the reason for
the confiscation, Rose allegedly stated, “the next time I catch you in your cell, I’m going to
say that you assaulted me. You are lucky I don’t kick you’re a _ _ and shove a plunger up
you’re a_ _.” [Record No. 1, p. 20, ¶¶ 168–69] Perry states that, on April 29, 2014, he
submitted a “complaint with an affidavit” describing Rose’s alleged actions, but that Unit 6
Manger Pamela Poston refused to process it. [Id., ¶ 170] Perry further asserts that, on May
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1, 2014, he attempted to use a computer to submit a complaint to SIA Agent Ronald
Corriveau, and that at 1:30 p.m. on the same day, Lieutenant Leroy Chaney called him to his
office and told him that if he did not drop the complaint, he would be moved to a different
housing unit. [Id., ¶¶ 170–73] Perry states that when he refused to drop the complaint, he
was “locked” in a holding cell until 6:00 p.m. At that time, Lieutenant “D.” Weiss told him
that he was being moved to housing Unit 1B. [Id., ¶ 174] When Perry asked why he was
being moved to the unit “known to be hostile to inmates from his [Perry’s] state,” Weiss
allegedly replied, “I’ll let the inmates handle our problem for us.” [Id., p. 21, ¶¶ 175–76]
Perry claims that he filed “a complaint of reprisal” to the Warden, the Attorney General, and
the BOP’s Central office. [Id., ¶ 178]
G. Alleged Events at USP-McCreary between June 27, 2014, and July 4, 2014
Perry contends that, on June 27, 2014, Officer David Taylor, along with another
prison officer, instructed him to exit his cell (No. 120 in Unit 1B) so that Taylor could search
it. [Record No. 1, p. 7, ¶¶ 48–51] Perry alleges that he told the other officer that he had
filed a complaint alleging that Taylor had planted a piece of metal in his prior cell (No. 209,
in Unit 6A). [Id., ¶ 53] Because he had already filed a complaint against Taylor, Perry
wanted to observe Taylor during the search, but the other officer refused. [Id., pp. 7-8, ¶¶
53–54] Perry states that compound officers “pat-searched” him outside of the housing unit.
When Perry again explained why he wanted to observe the search, Lieutenant David Mullins
told Perry that he would not be filing any complaints and Perry was placed in a holding cell.
[Id., p. 8, ¶¶ 55–58] While in the holding cell, Perry was ordered to strip-search in front of

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Lieutenant Mullins and Lieutenant Fowler. Lieutenant Fowler later stated that he saw an
object on the bench behind Perry. [Id., ¶¶ 60–61]
While Perry was naked, another officer, possibly “J.” Wagner, told him to “turn
around. Keep your legs straight. Bend over at the waist and spread your butcheeks (sic)
until I can see in you’re a _ _ h_ _ _.” [Id., ¶ 62] Perry claims that he told the officer he
would spread his legs, squat, and then cough pursuant to BOP policy, but that what the
officer demanded was sexual harassment. [Id., ¶ 63] Perry states he spread his legs, squatted
and coughed, but was given his clothes and told that he would be taken to the SHU for
refusing a direct order. [Id., p. 9, ¶¶ 64–67] An unidentified officer allegedly stated, “now
you are going to get you’re a_ _ kicked!” [Id.]
At that point Lieutenant Ulitzer and another unidentified officer allegedly assaulted
Perry. Perry was placed in the “black holding cage,” strip-searched, and again ordered to
submit to a rectal search. Lieutenant Ulitzer said, “but this time keep your legs straight, turn
around, bend over and spread you’re a _ _ cheeks until I can see up in you’re a _ _.” [Id., ¶¶
69–70] Perry allegedly told Lieutenant Ulitzer that his demand violated BOP policy, but
Ulitzer told him that if he did not comply, he would instruct the Cell Extraction Removal
Team (“CERT”) to place him in restraints and “look in his rectum.” [Id., ¶¶ 71–72]
Perry states that “a CERT team was executed against him.” [Id., ¶ 73] The specifics
of the CERT are not alleged in the Complaint. Perry alleges that he complained to Nurse
Sumer that the restraints were cutting off his circulation and breathing. [Id., ¶ 74] Perry
claims that Lieutenant Ulitzer again verbally threatened him and that Lieutenant Huberty

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allegedly told him that “if you stand and spread your cheeks, I’ll take you off restraints.” [Id.,
pp. 9–10, ¶¶ 75–76]
On June 28, 2014, Lieutenant Huberty, Physician Assistant Davis, Nurse Stevens,
Lieutenant Fowler and Nurse Sumer came into Perry’s cell at intervals to check his restraints.
He alleges that he complained to each of them about pain and loss of circulation in his
wrists, but Lieutenant Fowler and Nurse Sumer refused to provide him with medical
treatment or provide a medical request form. [Id., ¶¶ 77–81] Perry was taken to “R & D,”
where he underwent an X-ray body scan. Perry was allegedly told that submitting to the
body scan was “the only way” that he could receive medical treatment. [Id., ¶ 79] However,
even after the body scan and his release from the restraints, he claims that he never received
medical treatment. [Id., ¶ 79] On June 30, 2014, Perry asked Counselor Lawson and Case
Manager Jameson for permission to review the surveillance footage of the events of June 27,
2014. [Id., p. 11, ¶ 82] Perry alleges that between June 27, 2014, and July 4, 2014, Lieutenant
Ultizer, Lieutenant Fowler, Lieutenant “R.” Parsons, and “unknown SHU staff” denied him
toilet paper, hygiene supplies, a shower, and a change of clothing. [Id., ¶ 83]
III.
A. Events Allegedly Occurring at FTC-Oklahoma
Perry claims that Defendants “FTC-Oklahoma staff,” FTC-Oklahoma Lieutenant
Daniels, FTC-Oklahoma physician Dr. Kahn, FTC-Oklahoma Officer “D.” Brush, and an
FTC-Oklahoma Correctional Officer identified as “Lessner” and/or “Lesser” violated his
rights guaranteed by the Eighth Amendment of the United States Constitution and

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committed various common law torts. Perry cannot pursue such claims in this Bivens action
and his claims against these defendants will be dismissed for lack of jurisdiction.
A plaintiff must plead facts establishing personal jurisdiction over the defendants he
names, and the plaintiff has the burden of making at least a prima facie showing of personal
jurisdiction. See Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 149 (6th Cir. 1997).
“Without personal jurisdiction over an individual . . . a court lacks all jurisdiction to
adjudicate that party’s right, whether or not the court has valid subject matter jurisdiction.”
Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (citing Dragor Shipping Corp. v.
Union Tank Car Co., 378 F.2d 241, 244 (9th Cir. 1967)). A defendant must have purposefully
established minimum contacts within the forum state before personal jurisdiction will be
found to be reasonable and fair. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316–19 (1945); see
also Halderman v. Sanderson Forklifts Co., 818 S.W.2d 270, 274 (Ky. Ct. App. 1991). To
establish minimum contacts, a plaintiff must establish that the defendant should reasonably
anticipate being brought into court in the forum state because he purposefully availed
himself of the privilege of conducting activities there. Int’l Shoe, 326 U.S. at 316–19; see also
Southern Machine Co. v. Mohasco Indus., Inc., 401 F.2d 374, 380 (6th Cir. 1968). Put another
way, “the relevant inquiry is whether the facts of the case demonstrate that the non-resident
defendant possesses such minimum contacts with the forum state that the exercise of
jurisdiction would comport with ‘traditional notions of fair play and substantial justice.’”
Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir. 1991) (citations omitted).
Perry has not established personal jurisdiction over any of the FTC-Oklahoma
Defendants, all of whom reside and work in Oklahoma. Perry’s claims against them arise
-14-

out of conduct occurring in Oklahoma, not from any alleged activities in Kentucky. Perry
does not claim that these defendants have been to Kentucky, or that that they would
anticipate being named in litigation here. Accordingly, Perry’s official and individual capacity
claims against the “FTC-Oklahoma staff,” FTC-Oklahoma Lieutenant Daniels, FTCOklahoma physician Dr. Kahn, FTC-Oklahoma Officer “D.” Brush, and FTC-Oklahoma
Correctional Officer “Lessner” and/or “Lesser” will be dismissed for lack of personal
jurisdiction. Hasan v. Waxxis Inv. N.V., 865 F.2d 258, at *1 (6th Cir. 1988) (unpublished
table opinion) (“[T]he plaintiff in a civil action has the duty to state the grounds upon which
the jurisdiction of the court depends.”); Fed. R. Civ. P. 8(a)(1); Walls v. Waste Res. Corp., 761
F.2d 311, 317 (6th Cir. 1985).
B. Alleged Events at USP-McCreary between December 1, 2011, and February
2012
As summarized above, Perry alleges that between June 2012 and August 2012, Dr.
Figueroa, Lieutenant Duck, EMT Specialist Christopher Griffis, SIS Agent Ronald
Corriveau, “Dr. Velazpues” (or “Dr. Velazquez”), Physician Assistant Baker, Former
Warden Richard B. Ives, Former Associate Warden Quay, Captain Christopher Maruka, and
Mailroom Supervisor Sheila Mattingly, either interfered with his incoming and/or outgoing
mail at USP-McCreary in violation of his rights guaranteed by the First Amendment of the
United States Constitution, or denied him necessary medical treatment in violation of the
Eighth Amendment, which prohibits cruel and unusual punishment. Perry also claims that
these defendants committed various common law torts and seeks monetary damages.
These claims will be dismissed because they are barred by the applicable one-year
statute of limitations. A district court may raise a limitations bar sua sponte when the “defect
-15-

was obvious from the face of the complaint.” Alston v. Tenn. Dep’t of Corr., 28 F. App’x 475,
476 (6th Cir. 2002) (citing Pino v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995)). Perry’s First and
Eighth Amendment Bivens claims arose in Kentucky, and a one-year limitation period applies
to claims alleging the commission of constitutional torts in Kentucky. Ky. Rev. Stat. §
413.140(1)(a); Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003) (citing McSurely v.
Hutchison, 823 F.2d 1002 (6th Cir. 1987)); Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 181–82
(6th Cir. 1990). Thus, Bivens claims, such as these, are subject to a one-year statute of
limitations under Kentucky law. Mitchell, 343 F.3d at 825. When that one-year period began
to run is determined by federal law. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996) (citing
Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984)). A cause of action accrues when “the
plaintiff knows or has reason to know that the act providing the basis of his or her injury has
occurred.” Id. (citing Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991)); see also
Fox v. DeSoto, 489 F.3d 227, 232–33 (6th Cir. 2007).
Perry alleges that his First Amendment mail interference claims and his Eighth
Amendment medical treatment claims arose on various dates between December 1, 2011,
and an unidentified date in February 2012.7 The BOP’s administrative remedy process
typically takes no more than ninety (90) days from beginning to end but, even assuming that
liberal time extensions were involved at all three levels (the institution, the BOP’s Regional
Office and the BOP’s Central Office), and that the process instead extended to hundred
eighty (180) days, the administrative remedy process regarding all of Perry’s First and Eighth

7
Perry did not identify specific dates relative to his February 2012 claims, but that the last day of that
month was Wednesday, February 29, 2012. The Court, therefore, liberally assumes that Perry’s February
2012 claims could have arisen as late as Wednesday, February 29, 2012.

-16-

Amendment claims would and should have concluded before August 31, 2012. That means
that Perry should have filed suit on all of these claims on or before August 31, 2013. This
action was filed on July 16, 2014, almost one year later.
It is clear from the face of Perry’s Complaint that his First and Eighth Amendment
claims are barred by Kentucky’s one-year statute of limitations. The Court will therefore
dismiss Perry’s First and Eighth Amendment claims against Dr. Figueroa, Lieutenant Duck,
EMT Specialist Christopher Griffis, SIS Agent Ronald Corriveau, “Dr. Velazpues” (or “Dr.
Velazquez”), Physician Assistant Baker, Former Warden Richard B. Ives, Former Associate
Warden Quay, Captain Christopher Maruka, and Mailroom Supervisor Sheila Mattingly,
which arose between December 1, 2011, and February 29, 2012, as barred by the statute of
limitations.
C. Alleged events at USP-McCreary between June 2012 and August 2012; and
between January 2013 and February 4, 20148
Perry also claims that between June 2012 and August 2012, DHO Gary Mehler of
USP-McCreary, Captain Maruka of USP-McCreary, and Lieutenant Baker of USP-McCreary,
violated his right to due process of law guaranteed by the Fifth Amendment of the United
States Constitution in connection with Incident Report No. 2239424 (charging him with
contraband offenses), and the related disciplinary hearing at USP-McCreary in August 2012.
Perry claims that, as a result of the defendants’ actions during the disciplinary process, he
lost an unidentified amount of GTC which has extended his prison sentence. He seeks
monetary damages as a consequence.

8

These claims are similar so they will be addressed out of chronological order.

-17-

Perry further alleges that between January 2013 and February 5, 2014, Officer David
Taylor, Lieutenant “D.” Mullins, Lieutenant Mark Dixon, Lieutenant Richard Parsons,
Warden J. C. Holland, DHO Gary Mehler, and Mr. “Vires” (USP-McCreary Mailroom
official) violated his right to due process of law guaranteed by the Fifth Amendment of the
United States Constitution in connection with Incident Report No. 2530713 (charging him
with attempting to manufacture a weapon), and the resulting disciplinary hearing which
transpired on February 5, 2014. Perry also seeks monetary damages from these defendants.
To the extent that Perry seeks damages or other forms of relief resulting from the
loss of his GTC regarding both Incident Reports, his claims will be dismissed without
prejudice as premature. Perry admits that he was convicted of the contraband offense as
charged in Incident Report No. 2239424, and the attempted weapon offense charged
Incident Report No. 2530713. He alleges that he lost an unspecified amount of GTC as a
result of both disciplinary convictions. Perry cannot, however, seek damages under Bivens
unless and until he can demonstrate a favorable termination of his two disciplinary
convictions.
In Heck v. Humphrey, the Supreme Court established the so-called “favorable
termination rule.” 512 U.S. 477 (1994). Any claim for damages that, if successful, would
“necessarily imply” the “invalidity of any outstanding criminal judgment against the plaintiff”
is not cognizable under § 1983 unless the plaintiff demonstrates that judgment’s prior
invalidation. Id. at 487. This rule promotes the finality of, and consistency with, judicial
resolutions by limiting opportunities for collateral attack and averting the “creation of two
conflicting resolutions arising out of the same or identical transaction.” Id. at 484. The
-18-

“favorable termination rule” extends to prison disciplinary hearings resulting in the
deprivation of GTC, where the prisoner’s civil rights action alleging the denial of his due
process rights would “necessarily imply” the invalidity of the deprivation of GTC. Edwards v.
Balisok, 520 U.S. 641, 646–68 (1997). Because the sanctions imposed as a result of Perry’s
two disciplinary convictions included the forfeiture of GTC, he has placed the duration of
his current prison sentence at issue. Perry claims that both charges were factually unfounded
and that the defendants involved in both of his disciplinary proceedings (and/or
administrative appeals) violated his right to due process of law in violation of his Fifth
Amendment rights. If Perry were to succeed on those due process claims in this Bivens
action, he would necessarily invalidate USP-McCreary’s two disciplinary determinations.
A prisoner found guilty in a prison disciplinary hearing cannot use either 42 U.S.C. §
1983 or Bivens to collaterally attack the hearing’s validity or the conduct underlying the
disciplinary conviction. See Lanier v. Bryant, 332 F.3d 999, 1005 (6th Cir. 2003) (extending
Heck to Bivens claims); Johnston v. Sanders, 86 F. App’x 909, 910 (6th Cir. 2004) (“[Petitioner]
cannot challenge a disciplinary proceeding resulting in a loss of good-time credits in a Bivens
action [when] his disciplinary conviction has not been reversed.”); Denham v. Shroad, 56 F.
App’x 692, 693 (6th Cir. 2003). Because the loss of GTC directly affects the duration of the
Perry’s prison sentence, Perry must demonstrate a “favorable determination” of his prison
disciplinary convictions. To establish a favorable termination, Perry must first successfully
challenge the validity of his disciplinary conviction through 28 US.C. § 2241. Perry asserts
no facts indicating that he has challenged either disciplinary conviction in a habeas
proceeding, and the Court has not located any record of such proceedings in either
-19-

CM/ECF or PACER, the federal judiciary’s on-line database. Before filing a writ under 28
U.S.C. § 2241, however, Perry must administratively exhaust his claims directly challenging
these disciplinary convictions within the BOP’s administrative remedy process. See Campbell
v. Barron, 87 F. App’x 577 (6th Cir. 2004). The Court takes no position regarding whether
Perry has exhausted the administrative remedies available for appealing these disciplinary
convictions. If, and only if, Perry’s disciplinary convictions are invalidated may he then
bring a civil action for the alleged harm caused by the facts which resulted in his disciplinary
convictions and sanctions.
Perry’s Bivens claims against DHO Gary Mehler, Captain Maruka, and Lieutenant
Baker, Officer David Taylor, Lieutenant “D.” Mullins, Lieutenant Mark Dixon, Lieutenant
Richard Parsons, Warden J. C. Holland, and Mr. “Vires” (USP-McCreary Mailroom official)
challenging the loss of his GTC will be dismissed without prejudice to his filing petitions for
a writ of habeas corpus under 28 U.S.C. § 2241, and obtaining a favorable termination of his
disciplinary convictions.
D. Alleged Events at USP-McCreary in May 2013
Perry claims that in late May, 2013, SIS Agent Lieutenant Carol and Lieutenant “D.”
Mullins placed him in the SHU from Friday until Tuesday without giving adequate notice
and without following proper procedures. [Record No. 1, p. 17, ¶¶ 142–43] Perry alleges
that, after his release from the SHU, he realized some of his personal property was missing
from the inventory list completed by Officer Barnett and an unknown officer, and that
Officer Barnett had some of those items in his possession. [Id., ¶¶ 144–46] Perry alleges

-20-

that he “notified” former Warden J. C. Holland who instructed Lieutenant Huberty to
investigate, but Lieutenant Huberty failed to investigate his claim. [Id., ¶ 147]
1.

Placement in the SHU

Perry’s allegations about his placement in the SHU, from Friday until Tuesday, fail to
state a claim for relief under the Eighth Amendment. Merchant v. Hawk-Sawyer, 37 F. App’x
143, 145–46 (6th Cir. 2002) (denying petitioner’s Eighth Amendment claim in the absence of
allegations that petitioner was “denied basic human needs or otherwise subjected to cruel
and unusual punishment.”). Perry does not allege that he lost any GTC connected with his
four-day stay in the SHU, and a short-term confinement in SHU does not rise to the level of
an atypical and significant hardship in relation to the ordinary incidents of prison life, which
is the standard for determining whether a period of confinement in segregation violates his
right to due process. Sandin v. Conner, 515 U.S. 472, 484–86 (1995); Mackey v. Dyke, 111 F.3d
460, 463 (6th Cir. 1997); Wilson v. Wellman, 238 F.3d 426, at *3 (6th Cir. Dec. 6, 2000)
(unpublished table opinion); Ford v. Harvey, 106 F. App’x 397 (6th Cir. 2004) (finding that
prisoner’s placement in disciplinary confinement did not implicate a liberty interest entitled
to due process protection, where it was neither accompanied by loss of good time credits
nor lasted for a significant period of time causing an unusual hardship on prisoner). Thus,
Perry’s claims against Lieutenant Carol, SIS Agent, and Lieutenant “D.” Mullins regarding
these issues will be dismissed.
2. Claims regarding Lost Property
Perry’s complaints about the alleged mishandling, confiscation and/or conversion of
his personal property by Officer Barnett fall under the Federal Tort Claims Act (“FTCA”),
-21-

28 U.S.C. §§ 1346(b), 2671–80, which provides a limited waiver of sovereign immunity
allowing an action against the United States for wrongful acts committed by its employees
during the course of their employment. See Fitch v. United States, 513 F.2d 1013, 1015 (6th
Cir. 1975); United States v. Orleans, 425 U.S. 807, 813 (1975). The FTCA is the exclusive
remedy for such acts or omissions. 28 U.S.C. § 2679. Even so, Perry’s construed FTCA
claim will be dismissed because of the detention of goods exception, 28 U.S.C. § 2680(c).
This exception to the FTCA bars “any claim arising in respect of . . . the detention of any
goods, merchandise, or other property by any . . . law enforcement officer.” 28 U.S.C. §
2680(c). In Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 218 (2008), the Supreme Court
specifically determined that a “law enforcement officer” includes a BOP official and held
that a BOP officer holding prisoner property is exempt from liability upon any loss or
destruction of that property. Because Perry’s claims for damages based upon the loss or
conversion of personal property are barred by the FTCA exception found at 28 U.S.C.
2680(c), this Court lacks subject matter jurisdiction over his claim against Officer Barnett
and will must dismiss it. See Alford v. Sadowski, No. 4:10-CV-2542, 2011 WL 665444, at *1
(N. D. Ohio Feb. 15, 2011), Smith v. United States, No. 6:09-CV-314-GFVT, 2010 WL
307942, at *4 (E. D. Ky. Jan. 27, 2010); Jones v. United States, No. 09-CV-164-ART, 2009 WL
2602693, at *3 (E. D. Ky. Aug. 24, 2009).9

9
Congress has provided an administrative remedy for lost property claimants under 31 U.S.C. §
3723(a)(1), which provides that federal agencies have authority to settle certain “claim[s] for not more than
$1,000 for damage to, or loss of, privately owned property that . . . is caused by the negligence of an officer or
employee of the United States Government acting within the scope of employment.” The claim must be
presented to the head of the agency within one year after the action accrues. 31 U.S.C. § 3723(b). The Court
takes no position on the timeliness of Perry’s claim or whether the BOP would settle Perry’s claim, if made.

-22-

3. Failure to Investigate
Perry next alleges that he “complained” to former Warden J.C. Holland and
Lieutenant Huberty about the alleged loss or conversion of his property, and that these
defendants failed to investigate his claim. Liberally construing Perry’s allegation to state that
he filed a proper institutional BP-9 “Request for Administrative Remedy,” he nevertheless
fails to state a claim upon which relief can be granted on this issue because the denial of a
grievance or the failure to act upon the filing of a grievance is insufficient to establish liability
under Bivens or 42 U.S.C. § 1983. See Johnson v. Aramark, 482 F. App’x 992, 993 (6th Cir.
2012) (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)); Alder v. Corr. Med. Servcs., 73
F. App’x 839, 841 (6th Cir. 2003); Martin v. Harvey, 14 F. App’x 307, 309 (6th Cir. 2001).
Further, the denial of administrative remedies does not constitute a violation of
Perry’s right to due process of law because there is no inherent constitutional right to an
effective or responsive prison grievance procedure. Argue v. Hofmeyer, 80 F. App’x 427, 430
(6th Cir. 2003); Overholt v. Unibase Data Entry, Inc., 221 F.3d 1335, at *3 (6th Cir. June 14,
2000) (unpublished table decision) (“Hence, [plaintiff’s] allegations that the defendants did
not properly respond to his grievances simply do not rise to the level of a constitutional
violation.”); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Flick v. Alba, 932 F.2d
728, 729 (8th Cir. 1991). Therefore, Perry’s Fifth Amendment due process claims against
former Warden J.C. Holland and Lieutenant Huberty will be dismissed for failure to state a
claim upon which relief can be granted.

-23-

E. Alleged events at USP-McCreary between April 26, 2014, and May 1, 2014
Perry alleges that on April 26, 2014, Officer “A.” Rose harassed him and improperly
seized his personal property without a “confiscation form.” [Record No. 1, p. 20, ¶¶ 168–69]
Again, Perry’s claims challenging the allegedly improper confiscation of his personal
property are barred by the detention of goods exception to the FTCA as set forth in 28
U.S.C. § 2680(c) and Ali, 552 U.S. at 218.
1. Verbal Abuse
Perry’s allegation regarding Rose’s comments amount to nothing more than claims of
verbal abuse. And mere verbal abuse and harassment, while unprofessional and discouraged,
does not violate the Eighth Amendment. Wingo v. Tenn. Dep’t of Corr., 499 F. App’x 453, 455
(6th Cir. 2012) (“Verbal harassment or idle threats by a state actor do not create a
constitutional violation and are insufficient to support a section 1983 claim for relief.”); Ivey
v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (per curiam) (holding that verbal abuse or
harassment does not constitute punishment under the Eight Amendment); Johnson v. Ward,
215 F.3d 1326, at *1 (6th Cir. May 11, 2000) (unpublished table decision) (“[A prisoner]’s
allegation that [a correction officer] made an offensive sexual remark to him does not rise to
the level of a constitutional violation.”); see also Searcy v. Gardner, Civil No. 3:07-0361, 2008
WL 400424, at *4 (M.D. Tenn. Feb. 11, 2008) (“A claim under 42 U.S.C. § 1983 cannot be
based on mere threats, abusive language, racial slurs, or verbal harassment by prison
officials.”). Therefore, Perry’s Eighth Amendment claims against Officer Rose will be
dismissed for failure to state a claim upon which relief can be granted.

-24-

2. Failure to Investigate
Perry contends that, on April 29, 2014, he submitted a “complaint with an affidavit”
describing Rose’s alleged actions, but that Unit 6 Manger Pamela Poston refused to process
it. [Id., ¶ 170] Presumably, Perry is asserting that he was denied due process of law in
connection with Poston’s alleged refusal to process his administrative remedy and/or
“complaint.” This claim will also be dismissed because, as previously discussed, the denial
of a grievance or the failure to act upon the filing of a grievance is insufficient to establish
liability under Bivens. See Johnson, 482 F. App’x at 993; Alder, 73 F. App’x at 841. There is no
inherent constitutional right to an effective or responsive prison grievance procedure. Argue,
80 F. App’x at 430; Flick, 932 F.2d at 728. Accordingly, Perry’s Fifth Amendment due
process claims against Unit 6 Manger Pamela Poston will be dismissed for failure to state a
claim upon which relief can be granted.
3. Retaliation
Perry alleges that, on May 1, 2014, Lieutenant Leroy Chaney called him to his office
and told him that if he did not drop the complaint concerning Officer Rose, he would be
moved to a different housing unit. [Id., ¶¶ 172–73] Perry claims that when he refused to
comply, Lieutenant “D.” Weiss told him that he was being moved to housing Unit 1B. [Id.,
¶ 174] Thereafter, when Perry asked why he was being moved to unit “known to be hostile
to inmates from his [Perry’s] state,” Weiss allegedly replied, “‘I’ll let the inmates handle our
problem for us.’” [Id., p. 21, ¶¶ 175–76].
Perry does not assert that he suffered any actual or adverse injury at the hands of
other inmates as a result of being moved into Unit 1B.
-25-

It is well-established that

“corrections officials retain broad discretion over the administration of prisons, including
housing in general and cell assignments in particular.” Quick v. Mann, 170 F. App’x 588, 590
(10th Cir. 2006) (citing Bell v. Wolfish, 441 U.S. 520, 540 n. 23 (1979)).

Further, Prisoners

have no constitutional right under the Fourteenth Amendment’s Due Process Clause to a
particular security classification while incarcerated. Moody v. Daggett, 429 U.S. 78, 88 n. 9
(1976) (citations omitted); Marchesani v. McCune, 531 F.2d 459 (10th Cir. 1976).

“The

decision where to house inmates is at the core of prison administrators’ expertise.” McKune
v. Lile, 536 U.S. 24, 26 (2002) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)). However,
as Perry claims that Lieutenant Leroy Chaney and Lieutenant “D.” Weiss retaliated against
him because he had filed a “complaint” against Officer Taylor, he has alleged a retaliation
claim sufficient to require a response from Chaney and Weiss. Perry’s retaliation claims
against Lieutenant Leroy Chaney and Lieutenant “D.” Weiss will proceed.
F. Alleged Events at USP-McCreary between June 27, 2014, and July 4, 2014
1. Search of Perry’s Cell
Perry states that on, June 27, 2014, Officer David Taylor searched his cell in Unit 1B,
allegedly because Perry had filed a “complaint” against Officer Taylor. Perry complains that
he was moved to a holding cell and unable to observe the search. However, prisoners do
not have a constitutional right to watch prison officials search their prison or jail cells. A
prisoner has no legitimate expectation of privacy in his cell. See Hudson v. Palmer, 468 U.S.
517, 530 (1984). Further, in a somewhat similar case, the Supreme Court ruled that a
Michigan correctional rule that required pretrial detainees to remain outside their rooms
during routine “shake-down” inspections by prison officials did not violate rights protected
-26-

by the Fourth or Fifth Amendments, but simply facilitated safe and effective performance of
searches. Wolfish, 441 U.S. 520, 557. In upholding the prison’s rule, the Supreme Court
stated:
Permitting detainees to observe the searches does not lessen the invasion of
their privacy; its only conceivable beneficial effect would be to prevent theft
or misuse by those conducting the search. The room-search rule simply
facilitates the safe and effective performance of the search which all concede
may be conducted. The rule itself, then, does not render the searches
“unreasonable” within the meaning of the Fourth Amendment.
Wolfish, 441 U.S. at 557.
Perry’s objection to the fact that he was not permitted to observe Officer Taylor
search his cell on June 27, 2014, fails to state a claim upon which relief can be granted.
Perry’s claims against Officer David Taylor, Lieutenant Mullins, and Lieutenant Fowler
challenging the manner in which they searched his cell on June 27, 2014, will be dismissed.
2. Visual Body Cavity Search
Perry also challenges the manner in which “J.” Wagner and Lieutenant Ulitzer
attempted to conduct a visual body cavity search10 on June 27, 2014. Perry claims that
Wagner and Ulitzer violated BOP policy and his constitutional rights by ordering him to use
his hands to spread his buttocks so that they could view his rectal cavity. He further claims
that they caused the CERT team to take action to “execute” a full visual inspection of his
rectal body cavity. Perry contends that BOP policy required him only to spread his legs,

10
“The term ‘strip search’ generally refers to an inspection of a naked individual without scrutinizing
the subject’s body cavities. The term ‘visual body cavity search’ refers to a visual inspection of a naked
individual that includes the anal and genital areas. The term ‘manual body cavity search’ refers to an
inspection of a naked individual with some degree of touching or probing the body cavities.” Daugherty v.
Campbell, 935 F.2d 780, 781, n.1 (6th Cir. 1991) (citing Blackburn v. Snow, 771 F.2d 556, 561 & n. 3 (1st Cir.
1985)).

-27-

squat, and cough, but not to spread apart his buttocks. He claims that the order to do so
amounted to sexual harassment in violation of his Eighth Amendment rights or an
unreasonable search in violation of his Fourth Amendment rights.
The BOP regulation addressing visual searches of inmates is set forth in 28 C.F.R. §
552.11, Searches of Inmates, and it provides in relevant part as follows:
(c) Visual search--a visual inspection of all body surfaces and body cavities.
(1) Staff may conduct a visual search where there is reasonable belief that
contraband may be concealed on the person, or a good opportunity for
concealment has occurred. For example, placement in a special housing unit . . . ,
leaving the institution, or re-entry into an institution after contact with the public
(after a community trip, court transfer, or after a “contact” visit in a visiting room) is
sufficient to justify a visual search. The visual search shall be made in a manner
designed to assure as much privacy to the inmate as practicable.
(2) Staff of the same sex as the inmate shall make the search, except where
circumstances are such that delay would mean the likely loss of contraband. Where
staff of the opposite sex makes a visual search, staff shall document the reasons for
the opposite sex search in the inmate’s central file.
28 C.F.R. § 552.11(c) (1) and (2) (emphasis added).
The BOP has implemented a Program Statement (“PS”) to effectuate compliance
with § 552.11 (c)(1). In relevant part, PS 5521.05 (June 30, 1997) provides:
[(1) Staff may conduct a visual search where there is reasonable belief
that contraband may be concealed on the person, or a good opportunity
for concealment has occurred. For example, placement in a special
housing unit (see 28 CFR 541, subpart B), leaving the institution, or reentry into an institution after contact with the public (after a community
trip, court transfer, or after a “contact” visit in a visiting room) is
sufficient to justify a visual search. The visual search shall be made in a
manner designed to assure as much privacy to the inmate as
practicable.]
28 CFR 541, subpart B, refers to the Program Statement on Inmate Discipline
and Special Housing Units. Except in minimum security institutions, inmates
must undergo a visual search when leaving the institution, for whatever reason
-28-

(even when being released). Examples of other situations requiring visual
searches include:




Processing an inmate into an institution through
Receiving and Discharge,
placing an inmate in the Control Unit, and
conducting periodic visual searches of inmates returning
from outside work details.

[(2) Staff of the same sex as the inmate shall make the search, except
where circumstances are such that delay would mean the likely loss of
contraband. Where staff of the opposite sex makes a visual search, staff
shall document the reasons for the opposite sex search in the inmate’s
central file.]
See PS 5521.05(6)(b) http://www.bop.gov/PublicInfo/execute/policysearch?todo=query#
(last visited April 14, 2015) (bold in original).
Contrary to Perry’s assertions, nothing in 28 C.F.R. § 552.11 or PS 5521.05 provides
that a federal inmate must only spread his or her legs, squat, and cough during a visual body
cavity search. Likewise, relevant case law does not limit searches in the manner that Perry
describes. In Wolfish, federal detainees were required to expose their body cavities for visual
inspection as part of a strip search conducted after every contact visit with a person from
outside the institution. Wolfish, 441 U.S. at 558. The body cavity searches were conducted
without probable cause or reasonable suspicion. Wolfish, 441 U.S. at 558. If the inmate was
a male, he was required to lift his genitals and bend over to spread his buttocks for visual
inspection. Id. at 558 n.39. Balancing the significant and legitimate security interests of the
institution against the privacy interests of the inmates, the United States Supreme Court
upheld the BOP’s regulation as to the body cavity inspection. Id. at 558-60. The Court
considered the scope of the particular intrusion, the manner in which it is conducted, the

-29-

justification for initiating it, and the place in which it is conducted. Id. at 559. The Court
determined that the body cavity search policy was not unreasonable. Such searches do not
violate the Fourth Amendment’s prohibition against unreasonable searches, or the Fifth
Amendment’s guarantee of due process. Wolfish, 441 U.S. at 560-562.11

In reaching this

result, the Supreme Court explained:
A detention facility is a unique place fraught with serious security dangers.
Smuggling of money, drugs, weapons, and other contraband is all too
common an occurrence. And inmate attempts to secrete these items into the
facility by concealing them in body cavities are documented in this record and
in other cases. That there has been only one instance where an MCC inmate
was discovered attempting to smuggle contraband into the institution on his
person may be more a testament to the effectiveness of this search technique
as a deterrent than to any lack of interest on the part of the inmates to secrete
and import such items when the opportunity arises.
Wolfish, 441 U.S. at 559 (internal citations omitted).
In LaPriest, an Ohio district court addressed very similar facts and found that a prison
camp’s policy pertaining to visual cavity searches of inmates did not violate the Constitution.
LaPriest v. Shartle, No. 4:10-CV-2385, 2011 WL 841262 (N.D. Ohio Mar. 7, 2011). LaPriest
was incarcerated in the minimum security federal prison camp at FCI–Elkton, where he
worked in a garage located on the prison grounds, but outside the building where he was
housed. Id. at *1. LaPriest worked eight hours per day, five days per week, and was always
under the supervision of a corrections officer. Id. He alleged that his prison job did not put
him in direct contact with the public, but, even so, when he re-entered the prison each day,
he was subjected to a visual strip search. Id. During the search, he was required to open his
11
In upholding the BOP regulation, the Supreme Court noted that several lower courts had previously
upheld such visual body-cavity inspections against constitutional challenge. Wolfish, 441 U.S. at 560, n.41
(citing Daughtery v. Harris, 476 F.2d 292 (10th Cir. 1973), cert. denied, 414 U.S. 872 (1973); Hodges v. Klein, 412 F.
Supp. 896 (D.N.J. 1976); Bijeol v. Benson, 404 F.Supp. 595 (S. D. Ind. 1975); Penn El v. Riddle, 399 F. Supp.
1059 (E.D. Va.1975)).

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mouth, remove his dentures, run his hands through his hair, present his ears for
examination, lift his testicles, lift his arms, and bend over while spreading his buttocks. Id.
LaPriest filed a Bivens action claiming that the search was humiliating and unwarranted under
the circumstances. He claimed that there was no reason for prison officials to reasonably
believe that he was concealing contraband and that FCI–Elkton’s practice violated the
BOP’s policy and his Fourth and Fourteenth Amendment rights. Id.
The district court concluded at the initial screening stage that LaPriest had not stated
a claim demonstrating that the camp’s policy of permitting visual body cavity searches upon
re-entering the prison violated his Fourth or Fourteenth Amendment rights. Id. at *2. The
court held that “[v]isual body cavity inspections during strip searches conducted upon
inmates returning to the institution are not ‘unreasonable’ under the Fourth Amendment,
and are reasonably related to valid penological goals.” Id. at *1. The district court further
explained, “[b]eing subjected to visual body cavity searches when leaving and re-entering the
institution is not an ‘atypical or significant hardship in relation to ordinary incidents of
prison life.’” Id. at *2 (citing Sandin, 515 U.S. at 483).
In Arruda v. Fair, 547 F. Supp. 1324 (D. Mass. 1982), a prisoner confined in the
segregation unit of a Massachusetts state prison filed a civil rights action alleging that the
prison’s policy of requiring strip searches, including visual rectal searches, following
interviews with visitors, including attorneys, and visits to the prison law library, violated his
Fourth Amendment rights, his Eighth Amendment rights, his right to privacy protected by
the Fourth and/or the Fourteenth Amendments, and his right of access to the courts,
protected by the First Amendment. Id. at 1325. After a lengthy analysis of both the prison’s
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search policies and the manner in which they were executed, the district concluded that none
of the search policies, including the visual rectal search, violated the prisoner’s federal
constitutional rights. Id. at 1334–36. In rejecting the testimony of the prisoner’s expert
witness that the prison’s visual rectal search procedure (which, similar to Perry’s case,
required the inmate to spread his buttocks while bending over) could not achieve its
intended purpose of detecting and deterring the secreting of contraband, the district court
stated that:
Dr. Nelson’s testimony, however, fails to take into account the fact that
contraband may be detected through the visual rectal search when the inmate
is required to spread the cheeks of his buttocks while bending over, thereby
releasing objects which could be secured between the cheeks and outside of
the anus while the inmate is standing. Second, Dr. Nelson fails to take into
account the possibility of “trailing,” i.e., the failure of a person attempting to
secret within his rectal cavity contraband encased in a balloon-like device to
insert all of the encasement material beyond the anus. I reject Dr. Nelson’s
opinion on this topic, as well as his opinion on the negative psychological
effects of strip search policy on the residents of MCI-Walpole.
Id. at 1331.
Applying the rationale of Wolfish, and the express language of 28 C.F.R. § 552.11 and
PS 5521.05 to the present case, Perry has not alleged a claim upon which relief can be
granted against Wagner and Ulitzer for conducting an alleged visual cavity search under
these circumstances. Wolfish, LaPriest, and Arruda upheld federal prison procedures requiring
prisoners to make their rectal cavity area fully visible to prison officials, even if that means
physically spreading their buttocks so that prison officials have an unobstructed view of that
area of their body. See Arruda, 547 F. Supp. at 1331. Both the regulation and the statute
allow the BOP to conduct a visual search of an inmate where there exists a reasonable belief
that contraband may be concealed on the person, or a good opportunity for concealment.
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Perry’s Complaint demonstrates that the defendants reasonably believed that Perry
possessed contraband on June 27, 2014. He states that when Lieutenant Fowler went in his
cell, Fowler stated that he saw an object on a bench behind Perry. Further, Perry states that
his BOP institutional record consists of prior disciplinary convictions for either the
possession of contraband or the manufacture of a weapon. Perry was convicted in this
Court of assaulting federal prison officials and possessing a weapon in 2007, resulting in a
225-month sentence. The courts afford deference to the difficult choices made by prison
administrators, and Perry has given no reason for the Court to question the search under the
facts as alleged. See Bazzetta v. McGinnis, 124 F.3d 774, 779 (6th Cir. 1997); Muhammad v.
Bush, 121 F.3d 708 (6th Cir. 1997) (unpublished table decision) (upholding grant of summary
judgment in favor of defendants on male inmate’s claim that pat-down search by female
guards violated his First Amendment rights).
In its decision in Spear v. Sowders, 71 F.3d 626, 629 (6th Cir. 1995) (en banc) the United
States Court of Appeals for the Sixth Circuit acknowledged that strip and visual body cavity
searches are “embarrassing and humiliating,” but nonetheless upheld a search of a prison
visitor. Id. at 629. That court aptly observed, “[a] detention facility is a unique place fraught
with serious security dangers. Smuggling of money, drugs, weapons and other contraband is
all too common an occurrence.” Id. at 630 (quoting Wolfish, 441 U.S. at 559). Given these
facts and the case law, the Court finds that Perry has not stated a Fourth, Fifth, or Eighth
Amendment claim upon which relief can be granted based on the fact of or the manner in
which Lieutenant Ulitzer and “J.” Wagner conducted, or attempted to conduct, the visual
cavity search on June 27, 2014. Perry’s constitutional claims against Lieutenant Ulitzer and
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Officer “J.” Wagner regarding all aspects of the visual body cavity searches from June 27–28,
2014, will be dismissed.
3. Video footage request
Perry has named Counselor Lawson and Case Manager Jameson as defendants to this
action, but he alleges only that he asked these defendants for video footage of the alleged
events of June 27, 2014. Perry alleges no facts indicating that they violated his constitutional
rights, and defendants without personal involvement or participation in the alleged
unconstitutional actions will be dismissed from a Bivens action.

Ghandi v. Police Dept. of the

City of Detroit, 747 F.2d 338, 352 (6th Cir. 1984); Rizzo v. Goode, 423 U.S. 362 (1976).
4. Denial of Medical Treatment and Excessive Force
Perry alleges that, on June 28, 2014, when Lieutenant Huberty, Physician Assistant
Davis, Nurse Stevens, Lieutenant Fowler and Nurse Sumer came into his cell at intervals to
check his restrains, he complained to each of them about pain and loss of circulation in his
wrists. [Record No. 1, ¶¶ 77–81] Out of all of these defendants, however, Lieutenant
Fowler and Nurse Sumer are the only defendants that Perry claims specifically denied him
medical treatment after it was requested. [Id., ¶¶ 80– 81] Perry’s Eighth Amendment claims
against Lieutenant Huberty, Physician Assistant Davis, and Nurse Stevens alleging the denial
of medical treatment between June 27, 2014, and June 28, 2014, will be dismissed. However,
Lieutenant Fowler and Nurse Sumer will be required to respond to Perry’s Eighth
Amendment allegation that they denied him medical treatment on June 28, 2014.
Additionally, Lieutenant Ulitzer will be directed to respond to Perry’s Eighth Amendment
claim that he used excessive force and physically assaulted Perry on June 27, 2014.
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Lieutenant Ulitzer will also be required to respond to Perry’s pendent state-law claim alleging
battery.
5. Denial of Personal Hygiene Needs
Finally, Perry alleges that between June 27, 2014, and July 4, 2014, Lieutenant Ultizer,
Lieutenant Fowler, Lieutenant “R.” Parsons, and “unknown SHU staff” denied him toilet
paper, hygiene supplies, a shower, and a change of clothing. [Id., ¶ 83] Perry fails to state a
claim upon which relief can be granted regarding this issue. The Eighth Amendment
prohibits a punishment that violates civilized standards of decency or reflects unnecessary
and wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97, 102–03 (1976). A viable Eighth
Amendment claim has an objective and a subjective component. Farmer v. Brennan, 511 U.S.
825, 834 (1994). The objective component requires that the pain be sufficiently serious
within the context of “contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1,
8 (1992) (citation omitted). The subjective component requires a plaintiff to show that the
defendant acted with deliberate indifference to the inmate’s health or safety, i.e., the plaintiff
must show that prison officials had a “sufficiently culpable state of mind,” where the
officials were aware of and disregarded an excessive risk to an inmate’s health or safety.
Farmer, 511 U.S. at 834.
The long-term denial of basic hygiene items may give rise to an Eighth Amendment
claim, but a short-term denial of such items does not qualify as an Eight Amendment
violation. See, e.g., Flanory v. Bonn, 604 F.3d 249, 254 (6th Cir. 2010) (“Courts have not found
the objective component satisfied where the deprivation of hygiene items was temporary.”);
Matthews v. Murphy, 956 F. 2d 275, at *4 (9th Cir. 1992) (unpublished table decision) (noting
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that while “it has been held that ‘the Eighth Amendment forbids deprivation of the basic
elements of hygiene,’” the deprivation of a towel, toothbrush, toothpowder, comb, soap, and
other personal hygiene items for approximately 34 days did not rise to the level of an Eighth
Amendment violation); Crump v. Janz, No. 1:10-CV-583, 2010 WL 2854266, at *4 (W.D.
Mich. July 19, 2010) (holding complaint failed to plead an Eighth Amendment violation
where inmate asserted “lack of deodorant, toothbrushes, toothpaste, postage, typing and
carbon paper, and legal envelopes for 35 days”); Gilland v. Owens, 718 F.Supp. 665, 685 (W.D.
Tenn. 1989) (“Short term deprivations of toilet paper, towels, sheets, blankets, mattresses,
toothpaste, toothbrushes and the like do not rise to the level of a constitutional violation.”).
Further, Perry alleges no actual harm stemming from the alleged temporary denial of hygiene
items. See Argue v. Hofmeyer, 80 F. App’x at 430 (holding that a prisoner had failed to state an
Eighth Amendment claim because he did not allege a complete denial of hygiene products,
or that the deprivation occurred out of indifference to his hygiene needs, or that he suffered
any harm because of the alleged denial). Accordingly, Perry’s Eighth Amendment claim
against Lieutenant Ultizer, Lieutenant Fowler, Lieutenant “R.” Parsons, and “unknown SHU
staff,” alleging the temporary denial of toilet paper, hygiene supplies, a shower, and a change
of clothing, will be dismissed for failure to state a claim upon which relief can be granted.
F. Official Capacity Claims against the USP-McCreary Defendants and Claims
against Federal Agencies
Perry asserts claims against all of the USP-McCreary Defendants in their official
capacities. These claims will be dismissed because a plaintiff cannot maintain a Bivens action
against either the federal government or a federal official in his or her official capacity. Marie
v. American Red Cross, 771 F.3d 344, 365–66 (6th Cir. 2014) (citing Berger v. Pierce, 933 F.2d
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393, 397 (6th Cir. 1991) (“[P]laintiffs may not recover on Bivens claims that are asserted
against federal officers in their official capacity.”).
Perry also seeks monetary damages from the “Agricultural Department,” the
Department of Justice, the BOP, and the National Institute of Corrections. These claims
will be dismissed because, again, a plaintiff cannot bring a Bivens suit against federal agencies,
see Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484–86 (1994), or the United States, see
Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996). The United States is immune from
suit unless it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). And
here, the United States has not waived its sovereign immunity for suits for damages based on
claims that its employees’ conduct violated the Constitution. See Meyer, 510 U.S. at 483–86
(holding that a Bivens-style cause of action did not extend to agencies of the federal
government); Humphrey v. United States Prob. Dep’t, 221 F.3d 1334, at *2 (6th Cir. June 23,
2000) (unpublished table decision) (finding that a Bivens suit will not lie against federal
agencies, the United States itself, or federal officials sued only in their official capacity).
Thus, to the extent Perry seeks monetary damages from various federal agencies based on
the individual defendants’ allegedly unconstitutional conduct, his claims for money damages
are barred by the sovereign immunity of the United States.
G. Claims Against Various Other Defendants
Perry has named as defendants the Attorney General (presumably of the United
States), and other officials of USP-McCreary: Todd Lambert, Human Resource Manager,
“B.” Barron, Health Services Administrator, Officer Brown, SHU Property Official, Officer
L. Brown, Officer “D” Gardener, Dr. Lemon, “Psy. Dept.,” and Dr. Peterson, “Psy. Dept.”
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He has not, however, alleged sufficient facts indicating that any of these individuals violated
his constitutional rights in any respect. Rather, it appears that Perry named these individuals
en masse along with the other defendants with whom he had more extended dealings simply
because he may have known their names or have incidentally come into contact with them.
The claims against these defendants will be dismissed because Perry does not allege that they
were directly or personally involved in the alleged unconstitutional actions described in his
Complaint. See Ghandi, 747 F.2d at 352.
Regarding Perry’s claim against the “Attorney General,” a supervisory government
employee is only liable for his or her own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 676–77
(2009). Perry has not alleged any facts indicating that the United States Attorney General was
directly or personally involved in any of the alleged constitutional wrongdoing that he
describes. Thus, Perry appears to be claiming that the unidentified United States Attorney
General is liable to him under the doctrine of respondeat superior, through which a superior can
be held liable for the actions of an employee. However, respondeat superior cannot form the
basis of liability in a Bivens action. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691
(1978); Kesterson v. Luttrell, 172 F.3d 48 (6th Cir. 1998) (unpublished table decision); Jones v.
City of Memphis, 586 F.2d 622, 625 (6th Cir. 1978). For these reasons, Perry’s claims against
the U.S. Attorney General, Todd Lambert, Human Resource Manager, “B.” Barron, Health
Services Administrator, Officer Brown, SHU Property Official, Officer L. Brown, Officer
“D” Gardener, Dr. Lemon, “Psy.” Dept.” and Dr. Peterson, “Psy. Dept.” will be dismissed
for failure to state a claim upon which relief can be granted.

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H. Claims Asserted under Various Federal Statutes
In his Complaint, Perry cites various federal criminal statutes and statutes relating to
the duties of the BOP as bases for his claims. [See Record No. 1, pp. 2, 21–22.] Specifically,
Perry attempts to raise claims under 18 U.S.C. §§ 4, 241, 1001(a), 1512–13, 1702, 2234, 2244,
2246, 3621, 4042, and 4352. However, he does not allege how these statutes apply to him,
and these statutes do not provide a private right to action or a jurisdictional basis in this
Court. See Hamilton v. Reed, 29 F. App’x 202, 204 (6th Cir. 2002) (citing Morganroth &
Morganroth v. DeLorean, 123 F.3d 374, 386 (6th Cir. 1997); Diamond v. Charles, 476 U.S. 54, 64–
65 (1986)). As discussed, Perry’s claims fall under 28 U.S.C. § 1331 and Bivens. Accordingly,
Perry’s claims under these statutes will be dismissed for failure to state a claim upon which
relief can be granted.
I. Injunctive Relief12
Perry’s request for injunctive relief will also be denied. In his filing docketed as
Record No. 19, Perry claims that on, Wednesday, January 28, 2015, “Lieutenant Long”
threatened to take retaliatory actions against him based on this civil action. Perry states that
Long threatened to have his cell searched, to send him to the SHU, and to take his legal
work. Perry also claims that the next day, he was taken to the SHU on a “fraudulent
contraband charge.”

[Id.]

In another filing, Perry states that Lieutenant Long is

“mentioned” in his Complaint, and again requests the entry of an injunction to prevent the
defendants from retaliating him. [Record No. 21]

12
Perry filed a “Notice of Retaliation” [Record No. 19] and a “Renewed Motion for Injunction”
[Record No. 21], but has not filed a formal motion for injunctive relief. To the extent that these documents
request injunctive relief, the Court will construe these filings as motions for injunctive relief.

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A preliminary injunction is an extraordinary remedy which should be granted only if
the movant carries his or her burden of proving that the circumstances clearly demand it.
Overstreet v. Lexington-Fayette Urban Cnty Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). To obtain a
preliminary injunction, a plaintiff must show that: (i) he is likely to succeed on the merits, (ii)
he is likely to suffer irreparable harm in the absence of preliminary relief, (iii) the balance of
equities tips in his favor, and (iv) an injunction is in the public interest. Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008); Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119
F.3d 393, 399 (6th Cir. 1997) “These factors are not prerequisites, but are factors that are to
be balanced against each other.” Overstreet, 305 F.3d at 573. However, the failure to show a
likelihood of success on the merits is usually fatal. Gonzales v. Nat’l Bd. of Med. Exam’rs, 225
F.3d 620, 625 (6th Cir. 2000). The proof required for a plaintiff to obtain a preliminary
injunction is much more stringent than the proof required to survive a summary judgment
motion. Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000).
Under the first criteria, it is premature to determine if Perry is likely to succeed on the
merits of the few claims which will be been allowed to proceed. He has alleged only minimal
facts regarding the claims which have survived initial screening, and the defendants may
assert several defenses to those claims. “Before a district court undertakes to override the
prerogatives of . . . correctional authorities in the administration of any aspect of prison
administration, it must assure itself that no less intrusive means of bringing about
compliance with constitutional requisites is available.” Glover v. Johnson, 855 F.2d 277, 286
(6th Cir. 1988).

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Regarding the second factor to be considered under the preliminary injunction
analysis, Perry alleges no facts showing that he will suffer irreparable harm if the injunction is
not issued. And he likewise fails to satisfy the third criterion of the preliminary injunction
analysis, i.e., Perry alleges no facts which even remotely suggest that the denial of the
requested injunction would cause substantial harm to others. Even absent any such factual
allegations from Perry, the Court is faced with balancing his interest in obtaining a broad
injunction against “retaliation” with the defendants’ presumed interests in managing their
prison procedures and resources and avoiding interference from a federal court. Under the
facts of this case, the balance weighs against issuing a preliminary injunction.
Finally, because Perry does not allege that the public interest would be served by
issuing an injunction.

Thus, he fails to satisfy the fourth criterion of the preliminary

injunction analysis. In constitutional cases, an inquiry into the public interest is difficult to
separate from the likelihood of success on the merits because “the public interest is
promoted by the robust enforcement of constitutional rights.” Am. Freedom Def. Initiative v.
Suburban Mobility for Reg. Transp., 698 F.3d 885, 896 (6th Cir. 2012). The public interest in
leaving the administration of federal prisons to federal prison administrators is another
factor weighing against preliminary injunctive relief in this case.
IV.
Based on the foregoing discussion and analysis, it is hereby
ORDERED that:
1.

All claims asserted by Plaintiff Oceanus Perry against the following defendants

in both their official and individual capacities are DISMISSED WITH PREJUDICE, and
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these defendants are TERMINATED from this action: the United States Attorney
General; J.C. Holland, Warden, USP-McCreary; Captain Christopher Maruka; Ronald
Corriveau, SIS Agent; Todd Lambert, Human Resources Manager; Lieutenant Carol, SIS
Agent; Lieutenant Huberty; Lieutenant William Duck; David Mullins; Lieutenant Mark
Dixon; Richard Parson; Lieutenant Baker; “Stevens,” Health Services Administrator; “B.”
Barron, Health Services Administrator; “Davis,” Physician Assistant; “Baker,” Physician
Assistant; Nurse Stevens; Pamela Poston, Unit Manager; Mrs. Jameson, Case Manager; Mr.
Lawson, Unit Counselor; Shelia L. Mattingly, Mailroom Supervisor; Mr. Vires, Mailroom
Employee; Officer Brown, SHU Property Officer; Officer R. Thurman, SHU Property
Officer; Officer L. Brown; Officer Barnett; Officer D. Gardner; Officer A. Rose; Officer
David Taylor; Gary Mehler, Disciplinary Hearing Officer; Richard B. Ives, Former Warden,
USP-McCreary; “Dr. Velaspues” or “Dr. Valasquez;” E.M.T. Christopher Griffis; Dr.
Lemon, “Psy.” Department; Dr. Peterson, “Psy.” Department; Dr. Figuroa, “Psy.”
Department; “H. Quay,” Former Associate Warden, USP-McCreary; Staff, Federal Transit
Center-Oklahoma, Oklahoma City, Oklahoma; Lieutenant Daniels, Federal Transit CenterOklahoma; Dr. Kahn, Federal Transit Center-Oklahoma; Officer “D.” Brush Federal Transit
Center-Oklahoma; and Officer “Lessner” and/or “Lesser,” Federal Transit CenterOklahoma.
2.

Perry’s federal constitutional claims against the Agricultural Department, the

Department of Justice, the Bureau of Prisons, and the National Institute of Corrections are
DISMISSED WITH PREJUDICE, and these defendants are TERMINATED from this
action.
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3.

Perry’s claims alleging violations of 18 U.S.C. §§ 4, 241, 1001, 1512–13, 1702,

2234, 2244, 2246, 3621, 4042, and 4352 are DISMISSED WITH PREJUDICE.
4.

Perry’s requests for injunctive relief [See Record Nos. 1, 19, 21.] are DENIED

WITH PREJUDICE.
5.

Perry’s federal constitutional claims against Defendants Lieutenant Leroy

Chaney, Lieutenant “D.” Weiss, Lieutenant Ultizer, Lieutenant Fowler, and Nurse Sumer, in
their OFFICIAL CAPACITIES, are DISMISSED WITH PREJUDICE.
6.

The following defendants, in their INDIVIDUAL CAPACITIES, are

required to respond to Perry’s Bivens Complaint as to the following claims: (a) Lieutenant
Leroy Chaney must respond to Perry’s claim of alleged retaliation on May 1, 2014; (b)
Lieutenant “D.” Weiss must respond to Perry’s claim of alleged retaliation on May 1, 2014;
(c) Lieutenant Ultizer must respond to Perry’s Eighth Amendment allegation of excessive
force and his state-law claim of battery on June 27, 2014; (d) Lieutenant Fowler must
respond to Perry’s Eighth Amendment claim that he denied Perry medical treatment on June
28, 2014; and (e) Nurse Sumer must respond to Perry’s Eighth Amendment claim that she
denied him medical treatment on June 28, 2014.
7.

A Deputy Clerk in the London Clerk’s Office shall prepare a “Service Packet”

for these five defendants. The Service Packet shall include:
a.

a completed summons form;

b.

the Complaint [Record No. 1] and all attachments thereto;

c.

this Order; and

d.

a completed USM Form 285.
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8.

The Deputy Clerk shall send the Service Packets to the USMS in Lexington,

Kentucky.
9.

For each defendant to be served, the USMS shall serve them by:
a.

Sending a Service Packet 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 by certified or registered mail to the Office of

the Attorney General of the United States in Washington, D.C.; and
c.

Personally serving the defendants with a Service Packet through

arrangement with the Federal Bureau of Prisons.
10.

The USMS is responsible for ensuring that the defendants are successfully

served with process.

In the event that an attempt at service upon any defendant is

unsuccessful, the USM shall make further attempts and shall ascertain such information as is
necessary to ensure successful service.
11.

Within 40 days of the date of entry of this Order, the USMS Office shall send

a Service Report to the London Clerk’s Office, which the Deputy Clerk shall file in the
record, stating whether service has been accomplished with respect to the defendant.
a.

If a defendant is served by certified mail, the Service Report shall

include:
(i)

a copy of the green card showing proof of service; or

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(ii)

a statement that the green card was not returned from the U.S.

Postmaster, along with a “Track-and-Confirm” report from the U.S. Postal
Service showing that a proof of delivery does not exist.
b.

If a defendant is personally served, the Service Report shall indicate:
(i)

that the defendant was successfully served personally, or

(ii)

a statement explaining why the defendant could not be served

and what efforts are being taken to locate the defendant and accomplish
personal service.
12.

Perry must immediately advise the London Clerk’s Office of any change in his

current mailing address. FAILURE TO DO SO MAY RESULT IN THE DISMISSAL
OF THIS ACTION. Perry must communicate with the Court SOLELY through notices
or motions filed with the London Clerk’s Office. THE COURT WILL DISREGARD
CORRESPONDENCE SENT DIRECTLY TO THE JUDGE’S CHAMBERS.
13.

With every notice or motion filed with the Court, Perry MUST: (a) mail a

copy to each defendant (or his or her attorney); and (b) at the end of the notice or motion,
certify that he has mailed a copy to each defendant (or his or her attorney) and the date on
which this was done.

THE COURT WILL DISREGARD ANY NOTICE OR

MOTION WHICH DOES NOT INCLUDE THIS CERTIFICATION.
14.

The Clerk of the Court shall transmit a copy of this Memorandum Opinion

and Order to the Clerk of the United States Court of Appeals for the Sixth Circuit,
referencing Case No. 15-5212.

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This 16th day of April, 2015.

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