Buford v. Gilley et al

Filing 74

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,
Plaintiff,
v.

Civil Action No. 5:14CV160
(STAMP)

CAPTAIN J. GILLEY,
THOMAS McGEE,
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
capacities,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND GRANTING DEFENDANTS’ MOTION
TO DISMISS OR FOR SUMMARY JUDGMENT
I.

Procedural History

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.

The action

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.

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
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
their

official

magistrate

capacities

judge

be

recommended

dismissed

with

that

claims

all

prejudice.
regarding

The
the

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
remedies.
The

magistrate

judge

informed

the

parties

that

if

they

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.
II.

Neither party filed objections.
Facts

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

2

deprived of due process when he was assigned to the SMU.

Third,

the plaintiff alleges that the conditions of USP Hazelton SHU Cell
102 subjected him to cruel and unusual punishment.
plaintiff

alleges

that

several

USP

Hazelton

Finally, the
staff

members

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
staff members.

Defendant Lieutenant Jamie Canfield ordered that

the plaintiff be placed in the SHU under Administrative Detention
status until the contact list was fully investigated.

After the

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
SMU.
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.

However, the

plaintiff was not permitted to self-carry or self-administer his

3

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.

USP

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
entirety.
III.

Applicable Law

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.
file

any

objections

to

the

Because the plaintiff did not

report

and

recommendation,

the

magistrate judge’s findings and recommendations will be upheld

4

unless they are “clearly erroneous or contrary to law.”

28 U.S.C.

§ 636(b)(1)(A).
IV.

Discussion

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.”).

“The United

States, as a sovereign, is immune from suit save as it consents to
be sued.”

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).
properly

concluded

constitutional

tort

construed

a

as

that,

because

violations,

suit

directly

F.D.I.C. v.

Thus, the magistrate judge
the

his

plaintiff

claims

against

are

the

has
not

United

alleged
properly
States.

Accordingly, the plaintiff’s claims against the defendants in their
official capacities should be dismissed with prejudice for that
reason.
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.

5

See

Porter

v.

Nussle,

534

U.S.

516,

524

(2002)

(“[F]ederal

prisoners suing under Bivens . . . must first exhaust inmate
grievance

procedures

just

as

state

prisoners

must

exhaust

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.

See 20

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.

ECF No.

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
requests.

ECF

No.

46-1

at

¶¶

8-25.

The

magistrate

judge

determined that the plaintiff has not offered a justification to
explain why he failed to administratively exhaust those three
claims

and,

thus,

unexhausted claims.

is

precluded

from

litigating

his

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

to

the

SMU,

the

magistrate

6

judge

found

that

the

assignment did not violate the plaintiff’s due process rights.

A

federal inmate does not have a liberty interest in avoiding
transfer to more adverse or restrictive conditions of confinement.
Wilkinson

v.

Austin,

545

U.S.

209,

221

(2005).

Thus,

the

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.

Specifically, the

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.

See

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
by

the

Bureau

of

Prisons

as

to

the

place

of

imprisonment are exempt from challenge under the APA.

an

inmate’s

See Terrell

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

7

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
prejudice.
This Court finds no error in any of the above determinations
of the magistrate judge and thus upholds his rulings.
V.

Conclusion

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.
Accordingly,

in

the

alternative, for summary judgment (ECF No. 45) is GRANTED.

All

claims

the

regarding

defendants’

the

motion

plaintiff’s

to

dismiss

designation

to

or,

the

Special

Management Unit and all claims against the defendants in their
official capacities are DISMISSED WITH PREJUDICE.

All claims

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
administrative remedies.
It is further ORDERED that this case be DISMISSED and STRICKEN
from the active docket of this Court.

8

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
matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
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
matter.
DATED:

August 25, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

9