TAYLOR v. LAWSON ET AL
Filing
13
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 6/6/2011, that Plaintiff's Complaint (DocketEntry 1 ) be DISMISSED WITHOUT PREJUDICE for failing to state a claim. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
OSCAR L. TAYLOR,
Plaintiff,
v.
“CASE MANAGER” ANGELA LAWSON,
et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
1:11CV407
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge for review pursuant to 28 U.S.C. § 1915A. For the
reasons that follow, it is recommended that Plaintiff’s Complaint
be dismissed without prejudice for failure to state a claim.
BACKGROUND
This case began when Plaintiff, while then incarcerated at a
federal prison in the Eastern District of North Carolina, filed
what he styled as a “Complaint for Violation of Civil Rights[,]
Request For Jury Trial[,] Suit For Bureau Of Prison Program
Statement Violations, Declaratory and Injunctive Relief ‘Class
Action’” based on alleged “Misconduct And Deliberate Violations of
Authority ‘BOP’” in the United States District Court for the
District of Columbia. (Docket Entry 1 at 3 (emphasis added).) The
Complaint identified the following Defendants:
1) Case Manager
Angela Lawson; 2) Assistant Director Melissa Burgess; 3) Director
Monique Freeney; 4) Case Manager Michael Pinnix; 5) Case Manager
David Wardlow; 6) Bureau of Prisons (“BOP”) Community Corrections
Officer G.O. Moore; 7) BOP Community Corrections Administrator
Kelly Boyle; 8) BOP Mid-Atlantic Regional Director Kim White; and
9) BOP Director Harley Lappin.
(Id. at 1-2.)
Based on the address
listed for them and the allegations of the Complaint, it appears
that (at the time of the relevant events) Defendants Lawson,
Burgess, Freeney, Pinnix, and Wardlow worked at the Salvation Army
Residential
Carolina.
Re-Entry
Center
(“RRC”)
in
Winston-Salem,
North
(See id. at 1-3, 8.)
The Complaint alleges that Plaintiff “received and [sic]
incident report on 09/02/2009 at the Salvation Army RRC and upon
doing so lost 399 days of earned [credits against his custodial
sentence for participation in a drug treatment program and for good
conduct].”
(Docket Entry 1 at 4.)
According to the Complaint,
“[t]he incident report stated, ‘on 08/25/09, [Plaintiff] w[as]
administered a [urinalysis] test by [Defendant] Wardlow . . . the
results [of which were positive] for Opiates. Therefore [Plaintiff
is] in violation [of] Code 212 - Use of Narcotics.’”
(Id. at 4-5.)
Through the Complaint, Plaintiff expressly seeks to challenge:
1) “the incident report [Plaintiff] received on 09/02/2009 at
the Salvation Army RRC and the subsequent loss of 399 days of
earned [sentence-reduction credits]” (id. at 4); and
2) “the subsequent failure to notify [Plaintiff] of the DHO
[Disciplinary
Hearing
Officer]
Hearing
and
not
permitting
[Plaintiff] to participate in [the DHO Hearing]” (id.).
In
addition,
the
Complaint
contains
objections
to
other
aspects of the DHO Hearing (id. at 4-7), one issue from his “UDC”
(i.e., Unit Disciplinary Committee) Hearing (id. at 7-8), and other
-2-
related matters (id. at 8-9).
Based on the allegations in the
Complaint, Plaintiff “request[ed] to have [his sentence-reduction
credits] reinstated . . . [and] request[ed] ten million dollars in
Punitive
Compensatory
and
Actual
damages,
Distress, Hardship and the Loss of Liberty.”
Mental,
Emotional
(Id. at 8.)
Because “‘the sole remedy in federal court for a prisoner
seeking restoration of good-time credits is a writ of habeas
corpus,’” the United States District Court for the District of
Columbia “construe[d] [P]laintiff’s [instant] action as a petition
for writ of habeas corpus.”
(Docket Entry 3 at 1-2 (quoting
Edwards v. Balisok, 520 U.S. 641, 644 (1997)).)
In light of
authority limiting jurisdiction for habeas proceedings “‘involving
present
physical
custody’”
to
the
federal
district
of
the
custodian, the United States District Court for the District of
Columbia transferred this case to the Eastern District of North
Carolina (where Plaintiff then remained in custody). (Id. at 2-3.)
Following
that
transfer,
Plaintiff
moved
to
amend
his
Complaint to allege that he had exhausted his administrative
remedies
(because
he
“never
Administrative Officials”).
received
a
response
(Docket Entry 7.)
from
the
Plaintiff also
filed a notice of address change reflecting that he was no longer
in custody in the Eastern District of North Carolina, but rather
that he now resided out-of-custody in Kentucky.
(Docket Entry 8.)
The United States District Court for the Eastern District of North
Carolina thereafter entered an order:
-3-
1) explaining to Plaintiff that, if the action proceeded as a
habeas proceeding, his monetary damage request would be dismissed
without prejudice (Docket Entry 9 at 2);
2) affording Plaintiff an opportunity to inform the court if
he wished “to continue the matter as [a] civil right[s] matter”
(id. at 3); and
3) granting Plaintiff’s motion to amend his Complaint (id.).
Plaintiff then filed a document stating that he “would like to
continue this issue before the court as a civil suite [sic]/
Bivens.”
(Docket Entry 10 at 1.)
As a result, the United States
District Court for the Eastern District of North Carolina entered
the following order:
Plaintiff responded that he does not proceed in habeas,
but under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), as he
originally filed. Plaintiff has been released from
custody and is in Kentucky.
Five defendants in the
matter are located in Winston-Salem, North Carolina, two
are located in Creedmoor, North Carolina, one in
Annapolis Junction, Maryland, and one in Washington, D.C.
. . . .
[Because] [t]he majority of the defendant[s] are located
in Winston-Salem, North Carolina, which is also where the
incident in question occurred . . . the court ORDERS the
Clerk of Court to TRANSFER [P]laintiff’s action to the
United States District Court for the Middle District of
North Carolina, where venue is proper. The court has not
conducted a [28 U.S.C. § 1915A] review.
The United
States District Court for the Middle District of North
Carolina is better positioned to address such issues.
(Docket Entry 11 at 1-2.)
-4-
FACTUAL ALLEGATIONS
Issuance of the Incident Report on September 2, 2009
As to the issuance of the Incident Report, the Complaint
contains the following, pertinent factual allegations:
1) Plaintiff “did not take any opiates or illegal drugs” (id.
at 5);
2)
despite
Defendant
Wardlow’s
statement
that
“he
would
forward [to the laboratory] a copy of the medication log [showing
that
Plaintiff
took
Sudafed
PE,
Benadryl,
Weider
Protein
Supplement, Hydroxycut, and Pronabolin],” that medication log “was
not sent with [Plaintiff’s August 25, 2009 urine] sample . . . [and
thus the laboratory] would not have known the ingredients in
[Plaintiff’s] medications that may have caused a positive test”
(id. at 5-6);
3) “proper investigation procedures were not followed” in that
Defendants Burgess and Pinnix failed to ask the proper official “to
contact
the
testing
laboratory
to
determine
if
the
combined
medications [on Plaintiff’s medication log] could result in a
‘false positive’ test” (id. at 5; see also id. at 8 (“[Defendant]
Burgess broke procedure when she did not contact Correctional
Service
Administrator,
nor
did
the
investigating
officer
[Defendant] Pinnix”));
4) “[t]he procedure concerning [the taking of urinalysis
samples] were [sic] violated” in that, prior to the acquisition of
the urine sample, Defendant Wardlow “never washed his hands, nor
did he request that [Plaintiff] wash [Plaintiff’s] hands” and
-5-
Defendant Wardlow “took the urine sample from [Plaintiff’s] sight
for at least 5 minutes” (id. at 5-6);
5) pertinent administrative policies (i.e., the BOP’s “Program
Statement” or “P.S.”) require “that an initial positive test [be]
confirmed by a second test before it is reported to the institution
. . . [but] [t]his was not done” (id. at 7);
6) the testing laboratory “do[es] not send a [urinalysis]
report to [the BOP or the Salvation Army RRC] simply stating that
the test was positive for opiates . . . [but] would have identified
the exact drug that was screened, i.e., morphine, codeine, or
heroin” (id. (internal emphasis omitted));
7) Plaintiff was not told whether the laboratory test showed
a level of opiates sufficiently “above the 300 Ng/m cut-off level”
(id.);
8) “[t]here was never a second test done after [Plaintiff]
informed the RRC staff that the medication [he] was taking could
cause a false positive” (id.);
9) Defendant Lawson “did not follow[] the proper procedure
upon writing [Plaintiff] the Incident Report” (id. at 8);1 and
10) “[o]n 11/08/09, [Plaintiff] had another [urine sample]
taken . . . [that] tested positive . . . [but] [i]t was later
determined to be a ‘false positive’” (id. at 6).
1
The Complaint does not state what procedure Defendant Lawson failed to
follow. (See Docket Entry 1 at 8.) Elsewhere, the Complaint does allege that
someone (presumably, Defendant Lawson) cited the wrong “Code” number for “Use of
Narcotics” in the Incident Report, but does not allege that “Use of Narcotics”
failed to constitute an administratively punishable offense. (See id. at 5.)
-6-
The DHO Hearing
As to the DHO Hearing, the Complaint contains the following,
pertinent factual allegations:
1) Plaintiff “was not notified and did not participate in the
DHO [H]earing” (id. at 4; see also id. at 6-7 (alleging that,
contrary to BOP’s Program Statement, Plaintiff did not receive or
waive notice of DHO Hearing and that DHO Hearing “was held in
private and secret” outside of Plaintiff’s presence (internal
emphasis omitted)));
2) Plaintiff “never received the decision from the DHO” (id.
at 4);
3) contrary to the BOP’s Program Statement, Plaintiff “was
given no staff member to represent [him] at the DHO [H]earing” (id.
at 6 (internal emphasis omitted)); and
4) contrary to the BOP’s Program Statement, because of his
absence
from
the
DHO
Hearing,
Plaintiff
“was
not
given
the
opportunity to make a statement or present documentary evidence
. . . [or] to submit names of [his] requested witnesses to testify
and present documentation on [his] behalf” (id. at 6-7 (internal
emphasis omitted)).
Other Allegations
Finally, the Complaint contains these additional factual
allegations of note:
1) “letting [Defendant] Wardlow, who gave [Plaintiff] the
[urinalysis test], act as a representative for [Plaintiff] in a UDC
hearing” violated the BOP’s Program Statement (id. at 7; see also
-7-
id. at 8 (alleging that Defendant Wardlow “should have known” that
because he “gave [Plaintiff] the [urinalysis test] that it is
clearly a violation to sit in as representative to [Plaintiff]
during a UDC hearing”));
2) Plaintiff “provided a 25 page report to the Assistant
Director during the hearing and a copy of [his] medication log, [to
show] that the Sudafed PE [he had taken] would cause a false
positive [urinalysis]” (id.);2
3) Defendants Moore, Boyle, and White “failed to step in to
see that [Plaintiff] was treated unfairly [sic]” (id. at 8);
4) Defendant Moore “has refused to forward [Plaintiff] a DHO
packet” (id.); and
5) Defendant Lappin, “being the Director of the [BOP], is
responsible for the actions and conduct of his staff, to see that
they
have
adequate
training
concerning
the
[BOP’s]
Program
Statement and Rights of Inmates” (id. at 9).
DISCUSSION
Because Plaintiff is “a prisoner seek[ing] redress from a
governmental entity or officer or employee of a governmental
entity,” this Court must “review” his Complaint.
§ 1915A(a).
28 U.S.C.
“On review, the court shall . . . dismiss the
2
The Complaint does not explicitly identify the “hearing” at which he
provided this report to an unnamed Assistant Director (perhaps Defendant
Burgess). (See Docket Entry 1 at 7.) Elsewhere, the Complaint alleged that
Plaintiff did not participate in his DHO Hearing, but did take part in his UDC
Hearing. (See id. at 4, 6-8.) Moreover, the Complaint references no other
hearings. (See id. at 1-9.) Accordingly, the only reasonable inference from the
Complaint is that Plaintiff submitted this material during his UDC Hearing.
-8-
complaint, or any portion of the complaint, if [it] – (1) is
frivolous, malicious, or fails to state a claim upon which relief
may be granted; or (2) seeks monetary relief from a defendant who
is immune from such relief.”
added).
28 U.S.C. § 1915A(b) (emphasis
The required review reveals that the Court should dismiss
the Complaint for failure to state a claim.
A plaintiff fails to state a claim when the complaint does not
“contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (emphasis added) (internal
citations omitted) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
“Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short
of the line between possibility and plausibility of ‘entitlement to
relief.’” Id. (quoting Twombly, 550 U.S. at 557).
This standard
“demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”
Id.
In other words, “the tenet that a court must
accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.
Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Id.3
3
Although the Supreme Court has reiterated that “[a] document filed pro
se is to be liberally construed and a pro se complaint, however, inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and
quotation marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement that a pleading
contain more than labels and conclusions,” Giarratano v. Johnson, 521 F.3d 298,
(continued...)
-9-
As noted above, see supra, p. 4, Plaintiff has made clear that
he seeks to pursue Bivens claims against Defendants.
“In Bivens,
the [United States] Supreme Court held that ‘violation of the
Fourth Amendment by a federal agent acting under color of his
authority gives rise to a cause of action for damages,’ despite the
absence of any federal statute creating liability.”
Holly v.
Scott, 434 F.3d 287, 289 (4th Cir. 2006) (internal brackets
omitted). “‘In over 30 years of Bivens jurisprudence the [Supreme]
Court
has
extended
its
holding
only
twice.’”
Id.
(quoting
Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001)).
“The first time was in Davis v. Passman, 442 U.S. 228 (1979), where
the [Supreme] Court recognized that a female deputy administrative
assistant could claim damages under the Fifth Amendment’s Due
Process Clause against a Congressman who had fired her on the basis
of her gender.
The second was [the] extension of Bivens to Eighth
Amendment suits against federal prison officials [in Carlson v.
Green, 446 U.S. 14 (1980)].”
omitted).
Id. (internal parallel citations
“Since the Carlson decision in 1980, the Court has
consistently declined to extend Bivens beyond these well-demarcated
boundaries.”
Id. (citing cases).
3
See also Iqbal, 129 S. Ct. at
(...continued)
305 n.5 (4th Cir. 2008) (internal quotation marks omitted) (applying Twombly
standard in dismissing pro se complaint).
Accord Atherton v. District of
Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se
complaint . . . ‘must be held to less stringent standards than formal pleadings
drafted by lawyers.’ But even a pro se complainant must plead ‘factual matter’
that permits the court to infer ‘more than the possibility of misconduct.’”
(quoting Erickson, 551 U.S. at 94, and Iqbal, 129 S. Ct. at 1950, respectively)),
cert. denied, ___ U.S. ___, 130 S. Ct. 2064 (2010), and cert. denied sub nom.,
Zachem v. Atherton, ___ U.S. ___, 130 S. Ct. 3275 (2010).
-10-
1948 (“Because implied causes of action are disfavored, the Court
has been reluctant to extend Bivens liability to any new context or
new category of defendants.” (internal quotation marks omitted)).
Bivens and its Supreme Court progeny thus do not create an
implied federal cause of action for all perceived wrongs alleged by
federal prisoners.
In this case, Plaintiff’s Complaint identifies
the alleged wrongs he seeks to right via Bivens as:
1) “Violation
of Civil Rights” (Docket Entry 1 at 3); 2) “[BOP] Program Statement
Violations (id.); and 3) “Misconduct And Deliberate Violations of
Authority ‘BOP’” (id.).
individual
federal
“The purpose of Bivens is to deter
officers
from
committing
constitutional
violations.” Correctional Servs., 534 U.S. at 70 (emphasis added).
Plaintiff’s Bivens claims therefore can proceed only to the extent
his Complaint sets forth factual allegations that would establish,
at a minimum, constitutional violations by federal officers.4
The Complaint Fails to State a Bivens Claim against Any Defendant
as to the Issuance of the Incident Report on September 2, 2009
The Court should dismiss Plaintiff’s Bivens claims against all
Defendants predicated on the issuance of the Incident Report on
September 2, 2009 (and the fact that, but for his receipt of said
Incident Report, he would not have lost his sentence-reduction
4
In light of this standard, if Defendants Lawson, Burgess, Freeney,
Pinnix, and Wardlow are employees of the Salvation Army and not the BOP,
Plaintiff may not maintain Bivens claims against them. See Holly, 434 F.3d at
288-97 (ruling that federal prisoner could not pursue Bivens claim against
employees of private facility where he was held). However, because the Complaint
does not conclusively reveal the employment status of said Defendants, the
undersigned United States Magistrate Judge declines to recommend dismissal on
that ground at this stage of the proceedings.
-11-
credits).
First, the Complaint contains no allegations that
Defendants Freeney, Moore, Boyle, White, or Lappin played any part
in the issuance of the Incident Report.
Rather, the Complaint
alleges participation in that event only by Defendants Lawson,
Burgess, Pinnix, and Wardlow and only as follows:
1) Defendant Lawson “wr[ote] [Plaintiff] th[at] Incident
Report” (and “did not follow[] the proper procedure” in doing so)
(Docket Entry 1 at 8); and
2) prior to the issuance of the Incident Report, Defendants
Burgess and Pinnix violated “procedure” by neglecting to have
another official “contact the testing laboratory to determine if
the combined medications [on Plaintiff’s medication log] could
result in a ‘false positive’ test” (id. at 5; see also id. at 8);
3) Defendant Wardlow failed to forward Plaintiff’s medication
log to the laboratory and to follow proper “procedure” in obtaining
the urine sample that turned up positive (id. at 5-6).
“Because vicarious liability is inapplicable to Bivens . . .
suits,
a
plaintiff
must
plead
that
each
Government-official
defendant, through the official’s own individual actions, has
violated the Constitution.”
Iqbal, 129 S. Ct. at 1948.
The
Complaint does not allege that Defendants Freeney, Moore, Boyle,
White, or Lappin took any actions related to the issuance of the
Incident Report, much less that any such actions by said Defendants
“violated the Constitution,” id.
-12-
Plaintiff thus has failed to
state a claim against Defendants Freeney, Moore, Boyle, White, and
Lappin regarding the issuance of the Incident Report.5
Nor do the above-summarized allegations in the Complaint about
the activities of Defendants Lawson, Burgess, Pinnix, and Wardlow
related to the issuance of the Incident Report on September 2,
2009,
see
supra,
p.
12,
suffice
to
state
a
constitutional
violation. At most, Plaintiff’s factual assertions (if true) would
support a finding that said Defendants negligently failed to follow
proper administrative procedures in obtaining Plaintiff’s urine
sample, submitting it to the laboratory for testing, responding to
the positive result, and writing up the Incident Report.
The Court therefore should dismiss Plaintiff’s Bivens claims
against Defendants Lawson, Burgess, Pinnix, and Wardlow regarding
5
The fact that Defendants Freeney, Moore, Boyle, White and Lappin may hold
supervisory positions does not alter this conclusion. See Iqbal, 129 S. Ct. at
1949 (“[E]ach Government official, his or her title notwithstanding, is only
liable for his or her own misconduct.” (emphasis added)). Moreover, conclusory
allegations, such as the Complaint contains, that Defendants Moore, Boyle, and
White “failed to step in” (Docket Entry 1 at 8) cannot save Plaintiff’s Bivens
claims against said Defendants. See Iqbal, 129 S. Ct. at 1949 (rejecting notion
that “supervisor’s mere knowledge of his subordinate’s [improriety] amounts to
the supervisor’s violating the Constitution”).
As a final matter, the
Complaint’s conclusory assertion that Defendant Lappin, being the Director of the
[BOP], is responsible for . . . see[ing] that [his staff] ha[s] adequate training
concerning the [BOP’s administrative policies]” (Docket Entry 1 at 9) similarly
falls short. First, Iqbal “leaves little room for arguing that a government
official may be held liable . . . for failure to train.”
Brach v. City of
Wausau, 617 F. Supp. 2d 796, 805 (W.D. Wis. 2009). Second, the Complaint does
not allege that any Defendant under Defendant Lappin’s authority lacked adequate
training. (See id. at 1-9.) Third, as noted above, see supra, pp. 10-11, a
Bivens claim requires proof of a constitutional violation, not simply deviation
from administrative policies; because (for reasons that follow, see infra, pp.
13-14) the Complaint lacks sufficient allegations to establish that any Defendant
violated the Constitution in connection with the issuance of the Incident Report,
Plaintiff cannot maintain a claim that Defendant Lappin’s alleged “failure-totrain” any other Defendant about such matters violated the Constitution.
-13-
their participation in the issuance of the Incident Report because
“[i]njuries inflicted by governmental negligence are not addressed
by the United States Constitution.”
Daniels v. Williams, 474 U.S.
327, 333 (1986); accord Nesbitt v. Meyer, No. 96-6852, 99 F.3d 1130
(table),
1996
(unpublished)
WL
612455,
(affirming
at
*1
dismissal
(4th
Cir.
of
Bivens
Oct.
claim
24,
1996)
based
on
conclusion that, in light of Daniels, “negligence in [a federal
official’s]
execution
of
his
duties
is
not
cognizable
as
a
constitutional wrong”); Schultz v. Braga, 290 F. Supp. 2d 637, 654
(D. Md. 2003) (ruling that allegations of negligence against
federal law enforcement officials did not state Bivens claim),
aff’d on other grounds, 455 F.3d 470 (4th Cir. 2006); Lee X v.
Casey, 771 F. Supp. 725, 732 (E.D. Va. 1991) (“[T]he record shows,
at best, that [the defendant-official] negligently failed [to
perform a job function].
Negligent conduct simply does not give
rise to constitutional claim . . . under Bivens.
As a result, the
complaint fails to state a claim for relief against [the defendantofficial] and must be dismissed.”).
The Complaint Fails to State a Bivens Claim against Any
Defendant Regarding the Administrative Hearing Process
“Where a prison disciplinary hearing may result in the loss of
good time credits, [the Supreme Court has] held that the inmate
must receive: (1) advance written notice of the disciplinary
charges; (2) an opportunity, when consistent with institutional
safety and correctional goals, to call witnesses and present
documentary evidence in his defense; and (3) a written statement by
-14-
the factfinder of the evidence relied on and the reasons for the
disciplinary action.”
Superintendent, Mass. Corr. Inst., Walpole
v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff v. McDonnell, 418
U.S. 539, 563-67 (1974)).
In addition, “revocation of good time
does not comport with the minimum requirements of procedural due
process, unless the findings of the prison disciplinary board are
supported by some evidence in the record.” Id. (internal citations
and quotation marks omitted).
Assuming that a federal prisoner
deprived
(in
of
these
guarantees
contravention
of
the
Fifth
Amendment’s Due Process Clause) may obtain relief via Bivens
against a federal official responsible for any such deprivation,
Plaintiff’s Complaint fails to state such a claim.
First, the Complaint acknowledges that Plaintiff received
written notice of the disciplinary charge for possessing drugs in
the form of the Incident Report of September 2, 2009.
Entry 1 at 4-5.)
(See Docket
Second, although the Complaint alleges that
Plaintiff did not have an opportunity to participate in the DHO
Hearing, it also describes his participation in his UDC Hearing,
during which he had the opportunity to submit a 25-page report and
his medication log in support of his claim that his ingestion of
Sudafed PE, not of illegal drugs, caused his positive urinalysis.
(See id. at 4, 6-8.)6
Third, although the Complaint asserts that
Plaintiff did not receive a report from the DHO Hearing (despite
6
Moreover, the Complaint contains no allegation that the Assistant
Director (or whoever else) presided over Plaintiff’s UDC Hearing prohibited
Plaintiff from calling witnesses. (See Docket Entry 1 at 1-9.)
-15-
his requests to Defendant Moore), it acknowledges that other
administrative proceedings occurred (i.e., his UDC Hearing) and
lacks any allegation that any Defendant failed to provide Plaintiff
a written statement of the ultimate findings and basis for the
discipline imposed; indeed, the Complaint indicates that Plaintiff
clearly understood that he received punishment for using drugs
because of the positive drug test.
(See id. at 1-9.)
Finally, the
Complaint concedes that the record before the official(s) who
punished him for using drugs contained some evidence (i.e., the
positive drug test) to support that decision, although Plaintiff
questions the reliability of that evidence.
(See id. at 5-8.)7
CONCLUSION
Plaintiff’s Complaint fails to state a Bivens claim against
any Defendant based either on the issuance of the Incident Report
on September 2, 2009, or the administrative process that followed.
The Court therefore should dismiss this action under 28 U.S.C.
§
1915A(b)(1);
however,
that
dismissal
should
occur
without
prejudice, see McLean v. United States, 566 F.3d 391, 400 (4th Cir.
2009)
(indicating
that
district
courts
should
dismiss
with
prejudice under § 1915A(b)(1) only where they are “truly unable to
7
The Court also should dismiss Plaintiff’s Bivens claim related to the
purported inadequacy of the administrative hearing process because the Complaint
contains insufficient factual allegations regarding the accountability of any
particular Defendant for any constitutional deprivation. See Iqbal, 129 S. Ct.
at 1948 (“[A] plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.”).
For reasons previously discussed, see supra, p. 13 n.5, the supervisory status
of any Defendant, as well as conclusory allegations that any Defendant had a duty
to protect Plaintiff’s rights or “failed-to-train” subordinates, do not suffice.
-16-
conceive of any set of facts under which a plaintiff would be
entitled to relief”).
IT IS THEREFORE RECOMMENDED that Plaintiff’s Complaint (Docket
Entry 1) be DISMISSED WITHOUT PREJUDICE for failing to state a
claim.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 6, 2011
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