Lee v. Grondolsky

Filing 14

Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
WARREN A. LEE,
Petitioner,

)
)
)
)
)
)
)

v.
J. GRONDOLSKY, Warden,
Respondent.

C.A. No. 10-40019-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

March 30, 2012

Warren Antonio Lee, pro se, filed a petition for a writ of
habeas corpus (the "Petition") under 28 U.S.C. §2241, asserting
eight grounds for relief. Respondent J. Grondolsky, the warden of
FMC Devens, filed a Motion to Dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Lee subsequently filed a Motion
to Dispose of §2241, requesting that the court "hear and determine
the

facts"

and

dispose

of

his

petition

"as

law

and

justice

require," in accordance with 28 U.S.C. §2243. He also filed a
Motion to Appoint Counsel pursuant to 18 U.S.C. §3006A(2)(B). In
the Motion to Dispose of §2241, Lee stated that he had submitted a
reply to Grondolsky's Motion to Dismiss, but neither the court nor
the government received it. On October 20, 2011, this court ordered
Lee to file the reply he stated was previously submitted. On
October 28, 2011, Lee filed "Petitioner's Second Reply" (the
"Reply").
For the reasons stated below, the court is dismissing six of

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Lee's claims and allowing Lee to amend his petition with respect to
Grounds Three and Four, his due process claims. The court is also
denying Lee's Motion to Dispose of §2241 as moot and denying Lee's
Motion to Appoint Counsel.
In considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court must "take all factual allegations as
true

and

[]

draw

all

reasonable

inferences

in

favor

of

the

plaintiff." Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 96
(1st Cir. 2007). Federal Rule of Civil Procedure 8(a)(2) requires
that a complaint include a "short and plain statement of the claim
showing that the pleader is entitled to relief." As plaintiff is
proceeding pro se, his pleadings must be liberally construed.
Hughes v. Rowe, 449 U.S. 5, 9 (1980); Instituto de Education
Universal Corp. v. U.S. Dept. of Ed., 209 F.3d 18, 23 (1st Cir.
2000).
A motion to dismiss should be denied if a plaintiff has shown
"a plausible entitlement to relief."

Bell Atl. Corp. v. Twombly,

550 U.S. 544, 559 (2007). This means that claims need not only be
possible but also plausible. Twombly, 550 U.S. at 556. Therefore,
a

court

should

"eschew

any

reliance

on

bald

assertions,

unsupportable conclusions, and 'opprobrious epithets.'" Chongris v.
Board of Appeals of Town of Andover, 811 F.2d 36, 37 (1st Cir.
1987) (quoting Snowden v. Hughes, 321 U.S. 1, 10 (1944)). Rule 8
"demands more than an unadorned, the-defendant-unlawfully-harmed-me

2

accusation."

Ashcroft

v.

Iqbal,

128

S.

Ct.

1937,

1949

(2009)(citing Twombly, 550 U.S. at 555).
Lee's

Reply

primarily

addresses

the

due

process

asserted in Grounds Three and Four of the Petition.

claims

Grounds Three

and Four contain confusing and disjointed claims regarding an
alleged due process violation occurring during one or more of Lee's
disciplinary hearings. Based on the Petition and Reply, it appears
that Lee disputes some of the details of his alleged involvement in
one or more altercations and challenges the resulting sanctions
imposed upon him. Though Grounds Three and Four appear to be
concerned with the same set of events, it is unclear if or how they
are distinct from one another. The court is unable to determine
what

act

or

omission

Lee

alleges

violated

his

due

process

guarantees, when the alleged violation occurred (at his first or
remanded hearing), and what relief Lee now seeks. Lee's Petition
and Reply do not show that there is more than a "sheer possibility
that the defendant has acted unlawfully." See Iqbal, 129 S. Ct. at
1949.

These allegations fail to meet the pleading requirements of

Rule 8, and these grounds are, therefore, subject to dismissal.
However, the court is not persuaded that Lee is unable to
state a factual basis for relief on these due process claims. A
court may grant a petitioner leave to amend his complaint to allow
him to state the factual basis for his claim more fully, and
"should freely give leave when justice so requires."

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Fed. R. Civ.

P. 15(a)(2). Accordingly, because he is pro se, the court is giving
Lee an opportunity to amend his Petition in an effort to adequately
clarify and amplify his due process claims. Lee's amended petition
must state facts regarding the who, what, when, and where of the
alleged due process violations in order to avoid dismissal. If
Lee's amended petition does not state facts showing a plausible
entitlement to relief, his Petition will be dismissed with regard
to these claims.
In the Reply, after discussing his due process claims, Lee
states

that

his

"other

claims

have

all

been

ameliorated

or

corrected, thus this court cannot proffer any further assistance as
previously requested."

The court construes this as a request for

voluntary dismissal of these grounds, pursuant to Federal Rule of
Civil Procedure 41(a)(2). Pursuant to the Rule, unless otherwise
ordered, such a dismissal is without prejudice. See Fed. R. Civ. P.
41(a)(2). As it is conceivable that some of the matters involved in
the grounds being voluntarily dismissed could relate to possible
future civil rights claims, the court is allowing Lee's request and
dismissing without prejudice Grounds One, Five, Six, Seven, and
Eight of the Petition. The Motion to Dismiss, therefore, is moot
with regard to these grounds.
Lee's Reply does not reference Ground Two of his Petition.1

1

Though the Reply mentions "C2," this appears to refer only
to the due process claims alleged in Grounds Three and Four.
4

Accordingly, the court does not interpret the Reply as a request
for voluntary dismissal of Ground Two. Ground Two states that Lee
is entitled to an award for saving a corrections officer from harm
during a prison fight in 2008. Lee states that he yelled "watch the
knife," thus preventing injury to the officer.
Lee provides no authority for the assertion that he is
entitled to a reward for his actions. On the contrary, 28 C.F.R.
§523.16(c) states that a warden "may make lump sum awards of extra
good time not to exceed thirty days" for "an act which protects the
lives of staff or inmates or the property of the United States."
This gives a warden the discretion to issue an award, but does not
create an obligation to do so. See, e.g., Lopez v. Davis, 531 U.S.
230, 242 (2001) (in context of 18 U.S.C. §3621(e)(1), noting that
while 18 U.S.C. §3621(e)(1) instructs that the Bureau of Prisons
"may" reduce a prisoner's sentence for successfully completing a
drug treatment program, it does not require the Bureau to do so).
Accordingly, Lee has failed to meet his burden of pleading under
Rule 8 with regard to Ground Two, because his bald assertion that
he is entitled to a reward is unsupported by law. See In re
Citigroup, Inc., 535 F.3d 45, 52 (1st Cir. 2008) ("[W]e are free to
disregard

bald

assertions,

unsupportable

conclusions,

and

opprobrious epithets.") (internal quotation omitted). Ground Two
must, therefore, be dismissed for failure to state a claim.
Lee has also filed a Motion to Dispose of §2241, requesting

5

that the court "hear and determine the facts" and dispose of his
petition "as law and justice require," in accordance with 28 U.S.C.
§2243.

Because

this

Memorandum

and

Order

disposes

of

Lee's

Petition, the Motion to Dispose of §2241 is now moot.
Finally, Lee has filed a Motion to Appoint Counsel, asserting
that his claims are too "complex to be litigated by a layman/prose
inmate." He also asserts that "without counsel being appointed to
this case/petition no justice can be so required" because the
"district court neither sent him a docket sheet, entered a judgment
on the merits of the petition, nor has acknowledged in any other
form that the case it has is being given consideration due to the
complexities of it."
There is no constitutional right to appointed counsel in §2241
proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);
see also Bucci v. United States, 662 F.3d 18, 34 (1st Cir. 2011).
The court is permitted to appoint counsel for financially eligible
persons if "the interests of justice so require." 18 U.S.C.
§3006A(a)(2)(B). However, a court is not compelled to appoint
counsel

for

an

indigent

civil

litigant

unless

"exceptional

circumstances [are] present such that a denial of counsel [is]
likely to result in fundamental unfairness impinging on his due
process rights." Desrosiers v. Moran, 949 F.2d 15, 23 (1st Cir.
1991). Although Lee has asserted that his claims are "complex," the
court does not agree and he has not demonstrated exceptional

6

circumstances warranting the appointment of counsel.
Accordingly, it is hereby ORDERED that:
1. Defendant's Motion to Dismiss (Docket No. 7) is ALLOWED
with regard to Ground Two and it is DISMISSED for failure to state
a claim upon which relief may be granted.
2. Defendant's Motion to Dismiss (Docket No. 7) is DENIED
without prejudice with regard to Grounds Three and Four. By May 4,
2012, petitioner may file an amended petition clarifying and
explaining more fully Grounds Three and Four. If he fails to do so,
these grounds will also be dismissed. If the court receives an
amended petition, it will determine whether or not a responsive
pleading is required.
3. Petitioner's request to voluntarily dismiss Grounds One,
Five, Six, Seven, and Eight (Docket No. 13) is ALLOWED and these
grounds are DISMISSED without prejudice.
4. Respondent's Motion to Dismiss (Docket No. 7) is DENIED as
moot with regard to Grounds One, Five, Six, Seven, and Eight.
4. Petitioner's Motion to Dispose of §2241 (Docket No. 10) is
DENIED as moot.
5. Petitioner's Motion to Appoint Counsel (Docket No. 11) is
DENIED.

/s/ Mark L. Wolf
UNITED STATES DISTRICT COURT
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