Casey v. Thompson
ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Judge Seibert's 40 Report and Recommendation is ADOPTED; Plaintiff's 42 Objections are OVERRULED; Defendant's 23 Motion to Dismiss, or in the Alternative, Motion for Summary Judgment is GRANTED. This matter is ORDERED STRICKEN from the active docket of this Court and the Clerk is DIRECTED to enter judgment in favor of the Defendant. Signed by District Judge John Preston Bailey on 5/8/17. (Attachments: # 1 Certified Mail Return Receipt)(copy Plaintiff)(cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 2:16-CV-94
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation of United States Magistrate Judge James E. Seibert [Doc.
40]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge
Seibert for submission of a proposed report and a recommendation (“R&R”). Magistrate
Judge Seibert filed his R&R on March 28, 2017. In that filing, the magistrate judge
recommended that this Court grant defendant’s Motion to Dismiss, or in the Alternative, for
Summary Judgment [Doc. 23], and deny and dismiss plaintiff’s Complaint [Doc.1] with
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is timely
made. However, the Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge as to those portions of the
findings or recommendation to which no objections are addressed. Thomas v. Arn, 474
U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de
novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Farmer v.
McBride, 177 Fed.Appx. 327, 330-331 (4th Cir. 2006); Snyder v. Ridenour, 889 F.2d
1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Plaintiff timely filed his Objections [Doc. 42] on April 5, 2017. Accordingly, this Court will
conduct a de novo review of the portions of the magistrate judge’s R&R to which plaintiff
objects. The remainder of the R&R will be reviewed for clear error.
Plaintiff Lashaun Casey (“Casey” or “plaintiff”), initiated this action on November 9,
2016, by filing a pro se civil rights Complaint against defendant Jackoline Snoderly
(“Snoderly” or “defendant”) pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971) [Doc. 1].1 While plaintiff is currently
incarcerated at USP Big Sandy in Inez, KY [Doc. 25] and filed this action while incarcerated
at USP Lewisburg in Lewisburg, PA, the incidents at the center of Casey’s Complaint
allegedly occurred while he was incarcerated at USP Hazelton [Doc. 1]. Casey is serving
a life sentence for violating: (1) 18 U.S.C. § 2119(3): taking a motor vehicle from a person
through force which resulted in death; and (2) 18 U.S.C. § 924(j): unlawful use of a firearm
in furtherance of a crime of violence [Doc. 24-1 at 2-3].
In his Complaint, plaintiff raises a claim of “deliberate indifference” to his legal mail
This Court notes that the plaintiff filed a separate, similar Bivens action on the same day,
wherein he alleges additional instances of interference with his legal mail by USP Hazelton
staff [United States District Court for the Northern District of West Virginia, Civ. Act. 3:16CV-154, Judge Gina M. Groh presiding].
[Doc. 1-2 at 7]. Substantively, Casey contends that on December 9, 2014, defendant
arrived at his Special Housing Unit (“SHU”) cell with a piece of purported legal mail from
“Joannie Plaza,” his lawyer, a federal public defender from the District of Puerto Rico [Id.
at 3]. He avers that the envelope was clearly stamped “Legal Mail” with his attorney’s
name and address at the bottom left corner, and that defendant “knowingly and
intentionally started to read” the letter after opening the same in his presence [Id. at 3-4].
Thereafter, he contends that defendant took the letter away because it was written in
Spanish, and would review the letter within 24 hours [Id. at 4].
He further contends the letter was never given to him within 24 hours that defendant
promised, and that he has yet to ever receive the letter [Id.]. Further, he asserts that he
continuously asked defendant about the status of his letter when she visited his cell on her
weekly rounds, and that she either denied any knowledge of the letter’s whereabouts or did
not respond at all [Id. at 4 – 5]. Plaintiff contends that the camera on the unit would support
his claims [Id. at 5]. He further contends that his cell mate during that time, Luis Fernandez
Lopez, witnessed the alleged acts and attached an affidavit from Lopez which purportedly
supports his claim [Id.].2 Plaintiff also alleges that he has fully exhausted the requisite
administrative and legal remedies prior to filing this claim, a topic which will be discussed
in greater detail below [Id. at 5-7]. He contends that defendant’s actions violated Bureau
of Prisons (“BOP”) Program Statement 5265.11 and BOP rules and regulations [Doc. 1-2
at 8]. Therefore, he contends that defendant violated his First, Fifth, and Sixth Amendment
This Court has carefully reviewed the “Handwritten Affidavit and Declaration by Inmate
Luis Fernandez Lopez (Roomate [sic] of Plaintiff)” and finds that it does not support the
plaintiff’s allegations in the instant Complaint [see Doc. 1-3]. Instead, Lopez’s Affidavit
supports the facts alleged in Plaintiff’s other Bivens action [Id.; see also 3:16-CV-154].
rights, invaded his legal privacy, and caused him to suffer psychological injury, including
depression [Id. at 8 – 10].
Defendant, for her part, contends that one of her duties as Correctional Counselor
for the Special Housing Unit, where plaintiff was assigned at all times material to the
allegations in the Complaint, was to deliver legal mail to inmates assigned to her unit [Doc.
24-2 at 1]. Defendant admits that she remembers the inmate and the incident in question,
and that she did, indeed, bring Casey a letter addressed to him and marked as legal mail
[Id.]. Per Bureau policy, specifically Program Statement 5800.16, she opened the envelope
in the presence of Casey, and did a cursory search for contraband [Id.]. At that time, she
noticed that while the envelope was marked as arriving from a courthouse in Puerto Rico,
inside of the envelope was a handwritten letter that included a salutation with the letters X
and O’s [Id.]. Furthermore, the letter was in Spanish, and she can not read in that language
[Id. 1-2]. Because she thought this might be a personal letter instead of legal mail, she
brought the letter back to the mailroom for their review and any action they thought was
appropriate [Id. at 2]. She did not have any other involvement with this letter [Id.].
Thereafter, plaintiff filed this cause of action as noted above.
A. Motion to Dismiss:
A complaint must be dismissed if it does not allege “‘enough facts to state a claim
to relief that is plausible on its face.’ Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974
(2007) (emphasis added).” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
When reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court must assume all of the allegations to be true, must resolve all doubts
and inferences in favor of the plaintiffs, and must view the allegations in a light most
favorable to the plaintiffs. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir.
When rendering its decision, the Court should consider only the allegations
contained in the Complaint, the exhibits to the Complaint, matters of public record, and
other similar materials that are subject to judicial notice. See Anheuser-Busch, Inc. v.
Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995). In Twombly, the Supreme Court, noting
that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do,” Id. at 1964-65, upheld the dismissal of a complaint where the plaintiffs did not
“nudge[ ] their claims across the line from conceivable to plausible.” Id. at 1974.
B. Summary Judgment:
Fed. R. Civ. P. 56 provides that summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” The party seeking summary judgment bears
the initial burden of showing the absence of any genuine issues of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The burden then shifts to the
nonmoving party to come forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied,
502 U.S. 1095 (1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
However, as the United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for summary judgment may not
rest upon the mere allegations or denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial.” Id. at 256. “The inquiry performed is the
threshold inquiry of determining whether there is the need for a trial-whether, in other
words, there are any genuine factual issues that properly can be resolved only by a finder
of fact because they may reasonably be resolved in favor of either party.” Id. at 250; see
also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (Summary
judgment “should be granted only in those cases where it is perfectly clear that no issue
of fact is involved and inquiry into the facts is not desirable to clarify the application of the
law.” (citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950)). In
reviewing the supported underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Additionally, the party opposing summary
judgment “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Id. at 586. That is, once the movant has met its burden to show absence
of material fact, the party opposing summary judgment must then come forward with
affidavits or other evidence demonstrating there is indeed a genuine issue for trial. Fed.
R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323-25; Anderson, 477 U.S. at 248. “If the
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249 (citations omitted).
In the R&R, Magistrate Judge Seibert recommends that this Court deny and dismiss
Casey’s Complaint as plaintiff did not fully exhaust his required administrative remedies.
In his objections to the R&R, Casey addresses this point and contends that he was
precluded from filing an informal resolution because, at all times surrounding the instant
wayward mail dispute, he was housed in the Special Housing Unit (SHU) [Doc. 42 at 1].
Accordingly, he was required to “receive [an] informal resolution form from his counselor”
[Id.]. However, plaintiff avers that his counselor, also the defendant in this matter, informed
him that he did not have to submit an informal resolution [Id. at 1-2]. Therefore, he elected
to proceed to the next step of the dispute resolution process. In the alternative, he
contends that he, “did attempt informal resolution when he directed [d]efendant/ Counselor
Thompson not to read and to submit his opened legal mail to him” [Id. at 2]. Despite
plaintiff’s objections, this Court agrees that plaintiff did not fully exhaust the requisite
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The
PLRA’s “exhaustion requirement applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive
force or some other [constitutional] wrong.” Hill v. Curcione, 657 F.3d 116, 124 (2d Cir.
2012) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)). If the nonmoving party fails
to come forward with evidence that shows the exhaustion requirement of the PLRA has
been satisfied, there is no genuine issue of material fact standing in the way of summary
judgment. Id. The PLRA requires “proper exhaustion,” and “untimely or otherwise
procedurally defective attempts to secure administrative remedies do not satisfy the PLRA’s
exhaustion requirement.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). The administrative
process that a prisoner must exhaust is “defined not by the PLRA, but by the prison
grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007).
The BOP’s Administrative Remedy Program is BOP’s administrative grievance
process for inmates in BOP-operated institutions. 28 C.F.R. § 542.10. The Administrative
Remedy Program essentially involves four steps, the first being an informal complaint to
staff on the required form, commonly known as a BP-8. 28 C.F.R. §§ 542.10, 542.13. If
informal resolution is unsuccessful, the second step is to initiate the formal administrative
remedy process by submitting a written Request for Administrative Remedy on a BP-9 form
to the Warden. 28 C.F.R. § 542.14. If the inmate is not satisfied with the Warden’s
response, he or she may submit an appeal on a BP-10 to the BOP Regional Office. 28
C.F.R. § 542.15(a). If the inmate is not satisfied with the BOP Regional Office’s response,
he or she may file a Central Office Administrative Remedy Appeal with BOP’s General
Counsel, on a form BP-11. Id. “Appeal to the General Counsel is the final administrative
appeal.” Id. If the inmate does not receive a response at any stage of the process, the
failure to reply is considered a denial, and the inmate may proceed to the next step. 28
C.F.R. § 542.18.
Despite plaintiff’s protests to the contrary, there is no genuine issue of material fact
that plaintiff did not properly exhaust his administrative remedies properly. First, as noted
by defendant, there is no record that he submitted an informal request to staff (BP-8) as
required under 28 C.F.R. § 542.10 et seq., and the Plaintiff did not submit a copy of the
informal request and response with his Complaint. As stated by Howard Williams, the
Legal Assistant at the Mid-Atlantic Regional Office of the Federal BOP, a review of Casey’s
administrative remedy history shows that he did not “file an administrative remedy at the
institution level regarding problems with his legal mail” [Doc. 24-1 at ¶ 5]. Although plaintiff
alleges that he filed a BP-9 at the institution level, the same review of the SENTRY
Administrative remedy retrieval shows plaintiff filed neither a BP-8 nor a BP-9 regarding his
instant complaints [Id.]. When the plaintiff filed at the Regional and Central Office levels,
his administrative remedy was rejected, and he was told he must file a BP-9 with the
institution first before filing his appeal [Doc. 1-7 at 4, “You submitted your request or appeal
to the wrong level. You should have filed at the institution, regional office, or central office
level. . . You must first file a BP-9 request through the institution for the warden’s review
and response before filing an appeal at this level.”].
Despite plaintiff’s objection that his counselor, also the defendant in this matter,
informed him that he did not have to submit an informal resolution, the same is unavailing
[Doc. 42 at 1-2]. Plaintiff attached copies of the BOP’s Inmate’s Guide to Administrative
Remedies at Federal Prisons, which clearly state that a written informal complaint must first
be submitted at an institutional level [Doc. 1-4 at 2]. Despite these instructions, and the
instructions set forth in his Administrative Remedy Rejection Notice, plaintiff did not
properly exhaust his administrative remedies [Doc. 1-7 at 4]. As there is no genuine issue
of material fact that plaintiff has failed to exhaust his claims, plaintiff’s suit and objections
must be dismissed.
Magistrate Judge Seibert also recommends that Casey’s Complaint should be
dismissed because the letter at issue was from attorney Joannie Plaza, and, per a records
check, Plaza was not a member of Casey’s thirteen attorney legal team on his direct death
penalty appeal [Doc. 40 at 14-15]. In his Objections, Casey contends that, “[a]ttorney Plaza
provided [plaintiff] with consultation on the appeal and this was crucial to the preparation
of his direct appeal that was being perfected. The development of the issues on appeal
were the basis of the letters that were withheld from [plaintiff]” [Doc. 42 at 2]. However,
plaintiff does not offer a shred of evidence to support his claim that attorney Plaza in some
way provided consultation on the appeal, nor why the “XOXO” salutation on the letter was
not personal, instead of legal, mail. Accordingly, plaintiff’s objections on this point are
hereby ordered dismissed.
Upon careful review of the record, this Court hereby ADOPTS the magistrate
judge’s Report and Recommendation [Doc. 40] for the reasons stated above. The
plaintiff’s Objections [Doc. 42] are OVERRULED. Defendant’s Motion to Dismiss, or in the
Alternative, for Summary Judgment [Doc. 23] is GRANTED. Accordingly, this matter is
ORDERED STRICKEN from the active docket of this Court, and the Clerk is hereby
DIRECTED to enter judgment in favor of the defendant.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se plaintiff.
DATED: May 8, 2017.
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