Buford v. Gilley et al
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 71 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND GRANTING DEFENDANTS' 45 MOTION TO DISMISS OR FOR SUMMARY JUDGMENT. It is ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/25/17. (Pro Se Plaintiff via CM/rrr; counsel via CM/ECF) (lmm) (Additional attachment(s) added on 8/25/2017: # 1 Certified Mail Return Receipt) (lmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DR. GEORGE WILLIE BUFORD, III,
Civil Action No. 5:14CV160
CAPTAIN J. GILLEY,
SMU Hearing Administrator,
T. LANE, Discipline Hearing Officer,
LT. WARE, SHU Lieutenant,
C/O BISHOFF, SHU No.1 and
J. CANFIELD, S.I.S. Lieutenant,
in their individual and official
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND GRANTING DEFENDANTS’ MOTION
TO DISMISS OR FOR SUMMARY JUDGMENT
The pro se1 plaintiff, Dr. George Willie Buford, III, filed
this civil action asserting four claims under Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971).
All four claims
concern the plaintiff’s incarceration at USP Hazelton.
was referred to United States Magistrate Judge Robert W. Trumble
for initial review and report and recommendation pursuant to Local
Rule of Prisoner Litigation Procedure 2.
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
Thereafter, the defendants filed a motion to dismiss or, in
the alternative, motion for summary judgment. The magistrate judge
issued a Roseboro notice to the plaintiff, and the plaintiff filed
his response to the defendants’ motion.
The magistrate judge then
filed a report and recommendation recommending that this Court
grant the defendants’ motion to dismiss or, in the alternative,
motion for summary judgment. The magistrate judge recommended that
all claims regarding the plaintiff’s designation to the Special
Management Unit (“SMU”) and all claims against the defendants in
plaintiff’s placement in the Special Housing Unit (“SHU”), the
conditions of Cell 102 in the SHU, and alleged interference with
any contractual agreement with Monongalia General Hospital be
dismissed without prejudice for failure to exhaust administrative
objected to any portion of the report and recommendation, they were
required to file written objections within 14 days after being
served with copies of the report.
Neither party filed objections.
First, the plaintiff alleges that he was deprived of due
process and subjected to cruel and unusual punishment when he was
assigned to the SHU.
Second, the plaintiff alleges that he was
deprived of due process when he was assigned to the SMU.
the plaintiff alleges that the conditions of USP Hazelton SHU Cell
102 subjected him to cruel and unusual punishment.
interfered with his contractual obligations in a private contract
between himself and Monongalia General Hospital.
The defendants’ motion to dismiss explains that the plaintiff
was placed in the USP Hazelton SHU only after staff members found
a contact list in the plaintiff’s cell containing personal phone
numbers, email addresses, and other personal information of certain
Defendant Lieutenant Jamie Canfield ordered that
the plaintiff be placed in the SHU under Administrative Detention
status until the contact list was fully investigated.
plaintiff was moved to the SHU, staff found two handcrafted weapons
and tobacco in the plaintiff’s original cell.
The plaintiff was
then notified that a hearing would be held to determine whether he
should be assigned to the SMU.
The plaintiff did not attend the
hearing, but defendant Thomas McGee, a Discipline Hearing Officer,
recommended at the hearing that the plaintiff be assigned to the
The defendants’ motion to dismiss further explains that, while
assigned to the SHU, the plaintiff was permitted to self-carry and
self-administer medication for his hypertension.
plaintiff was not permitted to self-carry or self-administer his
other medications, which a health services staff member had to
distribute to him. The plaintiff did not always cooperate with the
testing required for him to receive those other medications.
Hazelton did not provide the plaintiff with a back brace or special
shoes and insoles because those medical devices can be used to
fashion weapons or to assist suicide.
The defendants also note
that the plaintiff filed no administrative grievances related to
the condition of USP Hazelton SHU Cell 102 or his purported
contractual agreement with Monongalia General Hospital.
In response, the plaintiff restates his original four claims
and argues that there are genuine issues of disputed material facts
sufficient to deny summary judgment.
For relief, the plaintiff
seeks a monetary award with attorneys’ fees, treble damages, and
the closing of the SMU until such time that it complies with the
Administrative Procedures Act (“APA”).
For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made.
Because the plaintiff did not
magistrate judge’s findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to law.”
In his report and recommendation, the magistrate judge first
correctly found that the plaintiff’s claims against the defendants
in their official capacities are not appropriate in a Bivens
action. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long
as the government entity receives notice and an opportunity to
respond, an official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity.”).
States, as a sovereign, is immune from suit save as it consents to
United States v. Sherwood, 312 U.S. 584, 586 (1941).
The United States has not waived sovereign immunity with respect to
lawsuits that allege constitutional tort claims.
Meyer, 510 U.S. 471, 475-79 (1994).
Thus, the magistrate judge
Accordingly, the plaintiff’s claims against the defendants in their
official capacities should be dismissed with prejudice for that
The magistrate judge further found that the plaintiff failed
to administratively exhaust all claims asserted in his Bivens
complaint other than the claim regarding his assignment to the SMU.
prisoners suing under Bivens . . . must first exhaust inmate
administrative processes prior to instituting a § 1983 suit.”).
The Bureau of Prisons provides a four-step administrative process,
and an inmate is not deemed to have exhausted his administrative
remedies until he has filed his complaint at all levels.
C.F.R. § 542.10, et seq.; see also Gibbs v. Bureau of Prison
Office, 986 F. Supp. 941, 943 (D. Md. 1997).
The plaintiff filed no administrative remedy requests related
to the condition of USP Hazelton SHU Cell 102 or his alleged
contractual agreement with Monongalia General Hospital.
46-1 at ¶¶ 26-27.
Additionally, the plaintiff did not fully
exhaust his administrative remedies related to his placement in the
SHU because he never appealed the rejections of his initial
determined that the plaintiff has not offered a justification to
explain why he failed to administratively exhaust those three
Accordingly, the magistrate judge properly
concluded that the three unexhausted claims should be dismissed
without prejudice for failure to exhaust.
As to the single exhausted claim regarding the plaintiff’s
assignment did not violate the plaintiff’s due process rights.
federal inmate does not have a liberty interest in avoiding
transfer to more adverse or restrictive conditions of confinement.
magistrate judge properly concluded that the plaintiff’s assignment
to the SMU was not a per se violation of his constitutional rights.
Furthermore, the magistrate judge correctly determined that
the plaintiff received each of the due process rights he was
entitled to when he was assigned to the SMU.
magistrate judge found that (1) the plaintiff received written
notice of the SMU hearing; (2) the plaintiff had the opportunity to
present documentary evidence, to present witness testimony, and to
have a staff member assist him at the SMU hearing; (3) the
plaintiff received a written report explaining why he was assigned
to the SMU; and (4) Mr. McGee was an impartial decision maker.
ECF No. 46-3; Wolff v. McDonnell, 418 U.S. 539, 564-71 (1974)
(outlining the due process rights to which a prisoner is entitled).
The magistrate judge also found that the SMU does not violate
the APA because, under 18 U.S.C. § 3625, designation decisions made
imprisonment are exempt from challenge under the APA.
v. Rupert, No. 7:11CV24, 2011 WL 6046618, at *5 (W.D. Va. Dec. 5,
2011) (“[The plaintiff’s] claim fails as a matter of law because
the [Bureau of Prison’s] decisions regarding where to house inmates
are exempt from challenge under the APA.”).
Thus, the magistrate
judge correctly concluded that the plaintiff’s single exhausted
claim regarding his assignment to the SMU should be dismissed with
This Court finds no error in any of the above determinations
of the magistrate judge and thus upholds his rulings.
Because the parties have not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the report and recommendation of the magistrate judge
(ECF No. 71) is hereby AFFIRMED and ADOPTED in its entirety.
alternative, for summary judgment (ECF No. 45) is GRANTED.
Management Unit and all claims against the defendants in their
official capacities are DISMISSED WITH PREJUDICE.
regarding the plaintiff’s placement in the Special Housing Unit,
the conditions of Cell 102 in the Special Housing Unit, and alleged
interference with any contractual agreement with Monongalia General
Hospital are DISMISSED WITHOUT PREJUDICE for failure to exhaust
It is further ORDERED that this case be DISMISSED and STRICKEN
from the active docket of this Court.
Finally, this Court finds that the plaintiff was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.
Because the plaintiff has failed to
object, he has waived his right to seek appellate review of this
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the pro se
plaintiff by certified mail.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
August 25, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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