Wise v. Wilson et al

Filing 55

MEMORANDUM OPINION re: Defts' Motion to Dismiss. Signed by District Judge Leonie M. Brinkema on 01/06/17. (pmil, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA

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Alexandria Division

Darryl Garte Wise,
Plaintiff,

-6 2017

< CU-.KK. I". r,

l:15cvl705 (LMB/TCB)

V.

Eric D. Wilson, et aL,
Defendants.
MEMORANDUM OPTNTON

Darryl Garte Wise, a former federal inmate proceeding pro se, has filed a civil rights
action, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 403

U.S. 388 (1971). On September 13,2016, defendants filed a Motion to Dismiss along with a
supporting brief, exhibits, and the notice required by Roseboro v. Garrison. 528 F.2d 309 (4th
Cir. 1975) and Local Rule 7K; however, these documents were sent to plaintiffs old address.
Dkt. No. 45. By an Order dated November 2,2016, plaintiffwas sent a copy ofthe documents
listed above and granted twenty-one (21) days to file a response. Dkt. No. 48. Plamtiff filed a
Response to Defendants' Motion to Dismiss on November 23, 2016. Dkt. No. 50. Defendants
filed a Reply Memorandum in Support of Defendants' Motion to Dismiss. Dkt. No. 51.

Although the certificate ofservice on defendants' reply memorandum states the pleading was
sent to plaintiffs old address, itappears as though plaintiffreceived a copy ofthe reply as
plaintifffiled a surreply. Dkt. No. 52. This matter isnow ripe for adjudication. For the reasons
that follow, defendants' Motion to Dismiss will be granted and this matter will bedismissed.
I. Background

In his complaint, plaintiffasserts the following allegations which, for purposes ofthe
Motion to Dismiss, will be taken as true.

A. Claim One

On October 28,2013, plaintiffwas falsely accused ofgroping another inmate. Lee Smith.

Continuation to CompL at 2. As aresult, plaintiffwas placed in the special housing unit (SHU)
and was informed that inmate Smith was also placed in the SHU pending investigation. Id
After plaintiffwas cleared ofthe allegation and released from the SHU, plaintifflearned that

inmate Smith had not been sent to the SHU or penalized for filing afalse report, despite the fact
that the Inmate Handbook states that inmates will be penalized for knowingly filing a false
report. Id Deputy Captain Gradiska toldplaintiffthat he knew that inmate Smith liedwhen he

filed the report and instructed plaintiffto file a complaint. Id On November 15,2013, plaintiff
"filed a Prison Rape Elimination Act (PREA) complaint... against inmate Lee Smith...." Id

When plaintifffollowed up with Gradiska about his complaint, plaintiffwas told to not approach
Gradiska again and that Gradiska would let plaintiffknow whenever he found anything out. Id
at 3. Plaintiffthen approached Warden Wilson regarding the complaint, butWarden Wilson told
him thathe was unable to discuss thematter with plaintiff. Id.

Plaintifffiled several BP-9 forms between December 3,2013, and March 18,2014. Id at

3-4. Plaintiffappealed the rejection ofhis last grievance to the Mid-Atlantic Regional Office,

where his appeal was denied. Id Plaintiffthen sent acopy ofhis PREA complaint to the Office
ofInspector General atthe Department ofJustice which first rejected the appeal and then
concurred with theresponses of Warden Wilson and the Regional Office. Id Plaintiffs PREA

complaint was never properly investigated or responded to, causing plaintiffanxiety attacks and
trust issues with the administration. Id. at 5-6.

B. Claim Two

During the week ofAugust 24,2014, plaintiffreported that his celknate, inmate Jack

Labrosse, was masturbating intheir cell while plaintiffwas present. Id at6. Officer McDowell

went to plaintiffs cell and Labrosse was sent to the lieutenant's office. Id Fifteen minutes later,
Labrosse returned to the unit without being disciplined. Id Plaintiffspoke with Lieutenant
Clements about beingexposed to Labrosse's behavior and was told that "this wouldnot be

considered a PREA issue," whether itwas directed at plaintiffor not. Id The next day, plaintiff
reported the incident to Counselor Price who toldplaintiffthat he would be moved to another

cell. Id at 7. Plaintiffwas not moved after one week, atwhich point Unit Manager Vukelich
stated shewould speak withCounselor Price to make sure plaintiff was moved. Id

On September 21,2014, inmate Labrosse repeated his behavior. Id Plaintiffreported
the behavior to Officer McDowell who returned to plaintiffs cell with plaintiff Id Plaintiff
entered the cell and told Labrosse to "get out," after which Labrosse threw a chair atplamtiff,
which plaintiff caught and threw to the side. Id Plaintiff was later taken to the SHU and served
an incident report for fighting. Id
C. Claim Three

Plaintiffs initial incident report for fighting was delivered onSeptember 22,2014. Id at
9. It was then re-written on October 11,2014, and again on October 12,2014. Id The final

version ofthe report was fabricated and forged, as it is totally different from the previous reports,

and plaintiffwas never interviewed regarding the fmal re-write. Id at 10. Lieutenant Ritchey
and Officer McDowell informed plaintiffthat they had no knowledge ofthe fmal version ofthe

report, even though their signatures were on it. Id Plaintiff informed Captain Dawson about
this, but she rejected [plaintiffs] claim." Id Plaintiff believes "these actions were taken in

retaliation for speaking out against the Administration's failure to adhere to the Sexually

Abusive Behavior Prevention and Intervention Program ... policy[] when reporting sexual

abusive behavior." Id at 8(emphasis omitted). For example, the regional office's response to
plaintiffsPREAcomplaint indicates that the acting administrator knew that plaintiffwas going
to befound guilty and disciplined before his disciplinary hearing occurred. Id. at 11-12.

Plaintiffwas confined in the SHU for thirty-three (33) days before seeing a disciplinary
hearing officer (DHO) and then waited sixty-eight (68) working days before being able to start
his appeal process. Id at 9. Plaintiffalleges thatthe DHO did notlisten to his evidence andwas

only interested in knowing if plaintiff had thrown a chair, which plaintiffadmitted hedid, but
argues about "how it was described in the report." Id at 11. Specifically, plaintiff claims that
Labrosse "threw a chair towards [plaintiff] which [he] caught and tossed to the side." Id
Plaintiffalso admitted to the Unit Discipline Committee that he "threwa chairtowards"
Labrosse. Id. at Ex.R.

Plaintiffhas named Warden Wilson, Counselor Price, Captain Dawson, Unit Manager

Vukelich, Deputy Captain Gradiska, Lieutenant Richey, Officer McDowell, and Hearing Officer
Bennett as defendants. Id at 1. Plaintiffseeks a court order expunging the conviction of

fighting from his disciplinary record, restoring 27 days ofgood time credit, changing his housing
status to the appropriate custody level, as well as reimbursement of court filing fees and
monetary damages in the amount deemed appropriate. Id. at 14.
II. Standard of Review

Federal Rule ofCivil Procedure 12(b)(6) allows a court to dismiss those allegations

which fail "to state a claim upon which relief can be granted." Acourt may dismiss claims based

upon dispositive issues oflaw. Hishon v. Kins &Soalding. 467 T M 7^ n QX4) The alleged
JS

facts are presumed true, and the complaint should be dismissed only when "itisclear that no
relief could be granted under any setof facts that could beproved consistent with the
allegations." Id To survive a 12(b)(6) motion, "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to reliefthatis plausible on its face."' Ashcroft v.

Iqbal, 556 U.S. 662,678 (2009) (quoting Bell Atlantic Corp. v. Twomblv. 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the plaintiffpleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Id; however, "[tjhreadbare recitals ofthe elements ofa cause ofaction, supported by mere
conclusory statements, do notsuffice" to meet this standard, id, and a plaintiffs "[f]actual
allegations must be enough to raise a right to reliefabove the speculative level...." Twomblv.
550 U.S. at 55.

Onthe other hand, where, as here, a complaint is filed bya prisoner acting pro se,it must
be construed liberally no matter howunskillfully it is pleaded. Haines v. Kemer. 404 U.S. 519
(1972). A pro se litigant thus is not heldto the strict pleading requirements demanded of
attorneys. Estelle v. Gamble. 429 U.S. 97,106-07 (1976); Figgins v. Hudspeth. 584 F.2d 1345

(4th Cir. 1978), cert, denied. 441 U.S. 913 (1979). For these reasons, a court's "power
summarily to dismiss a prisoner's pro se complaint is limited." Pippins, 584 F.2d at 1347.
III. Analysis
A. Claims One and Two

In his Response to Defendants' Motion to Dismiss, plaintiff states thathis first claim "is

based upon ... defendants' failure to properly investigate plaintiff[']s complamt under the

[PREA] and the failure to penalize an inmate for knowing filed [sic] afalse PREA complaint
against the plaintiff." PL Resp. to MTD at2. Plaintiffgoes on to argue that his second claim "is

also based upon the [PREA]" and that "defendants failed to protect [pjlaintifffrom being
subjected to abusive behavior as outlined in the [PREA]." Id

Claims OneandTwo will be dismissed for failure to state a claim upon which reliefcan
be granted. Plaintiffs argumentthat his first two claims arise under the PREA is of no moment

becauseprisonersdo not have a right to sue under the PREA.

De'Lonta v. Clarke. 2012 WL

4458648, at *3 (W.D. Va. Sept. 11,2012) (''Nothing in thePREA suggests thatCongress

intended to create a private right of action for inmates to sue prison officials for noncompliance
with the Act."), affd sub nom. De'Lonta v. Pruitt. 548 F. App'x 938 (4thCn. 2013).
In addition, plaintiffs argument that his first claim is based on defendants' failure to

penalize another inmate fails because plaintiff has no constitutional right to have his complaint
investigated or to have another prisoner prosecuted.

LindaR.S. v. Richard P.. 410 U.S. 614,

619 (1973) ("[A] private citizen lacksa judiciallycognizable interest in the prosecution or

nonprosecution of another."); Rivera v. Dickenson. 2015 WL 5565273, at *4 (W.D. Va. Sept. 21,
2015) (holding prisoner "had no constitutional rightto have a particular incident investigated or
to have officers disciplined"). Accordingly, plaintiffis not entitled to relief on his claims
invoking the PREA and Claims One and Two will be dismissed.
B. Claim Three

Claim Three asserts a violation of plaintiffs right to dueprocess in connection withthe
chair throwingincident. Specifically, he complains aboutthe "numerous re-writes of the initial

Incident Report, which delayed plaintiffs Discipline Hearing" and that the final incident report
was "fabricated and forged" and"shows a cover-up by the defendants to conceal their failure to

protect the plaintiffs PREA rights and to follow the procedures governing those rights." PI.
Resp. to MTD at 2-3.

The Due Process Clause of theFifth Amendment prohibits the federal government from

depriving an individual of life, liberty, or property without due process of law.

Boiling

V. Sharpe. 347 U.S. 497,499-500 (1954). A prisoner's liberty interest is generally limited to
being free from conditions that "impose[] atypical and significant hardship ontheinmate in

relation to the ordinary incidents ofprison life." Sandin v. Connor. 515 U.S. 472,484 (1995).
Specifically, a prisoner has protection against the arbitrary imposition ofpunishment by prison
officials. See Wolffv. McDonnell. 418 U.S. 539, 558 (1974). He thus has a protected liberty
interest inthe procedural protections provided inprison disciplinary hearings. Inthese hearings,
an inmate's due process rights are satisfied when he receives advance notice of the charges
against him, receives written findings of the outcome of the hearing, and is ableto callwitnesses
on his behalf Id. at 561-68.

Although a prisoner "hasno constitutionally guaranteed immunity from being falsely or
wrongly accused of conduct which may result in the deprivation of a protected liberty interest,"

Freeman v. Rideout. 808 F.2d 949,951 (2d Cir. 1986), "there are exceptions to thisrule." Cole
V. Hollowav. 631 F. App'x 185,186 (4thCir. 2016) (citing Sprouse v. Babcock. 870F.2d450,
452 (8th Cir. 1989) (holding thata disciplinary charge may be actionable under § 1983 if
retaliatory)).

Plaintiff asserts that, inretaliation for filing complaints regarding defendants' alleged

mishandling ofhis PREA complaint, the incident reports were rewritten to delay his disciplinary
hearing and the final version ofthe incident report was "fabricated and forged." While these
allegations, ontheir own, may besufficient to state a claim for relief, plaintiff is notentitled to

relief because his allegations inthe complaint clearly establish that plaintiff admitted throwing a

chair. Richardson v. Rav. 492 F. App'x 395, 396 (4th Cir. 2012) (holding that plaintifffailed to

state a claim for retaliation because "[a]bsent some evidence or claim that his disciplinary
conviction was improperlyobtained, [plaintiffs] assertionsthat the initial charge was false
cannot state a claim") (citations omitted); Moore v. Plaster. 266 F.3d 928, 931 (8th Cir. 2001)

("[A] defendant may successfullydefend a retaliatory-discipline claim by shovsdng 'some
evidence' that the inmate actually committeda rule violation.") (citations omitted). Even if
plaintiffs cellmate threw the chair first, there was no need for plaintiff to also throw it.
Accordingly, plaintiff has failed to state a claim for retaliation.

Plaintiff also has not alleged that he did not receive written copies of the incident reports,
that he did not receive written findings of the outcome of the hearing, or that he was unable to

call witnesses on his behalf. Therefore, plaintiffhas failedto state a claim upon which relief can
be granted and defendants' Motion to Dismiss will be granted as to Claim Three.
IV. Conclusion

For the foregoing reasons, plaintiffhas failed to state a claim upon which relief can be
granted pursuant to § 1983 and defendants' Motion to Dismiss will be granted. An appropriate
Order shall issue.

Entered this

j

(o

day of

2017.

Alexandria, Virginia

/s/

Leonie M. Brinkema

United States District Judge