Pham v. Saad et al

Filing 49

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 44 REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE, GRANTING DEFENDANTS' 35 MOTION TO DISMISS CONSTRUED AS A MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF'S 1 COMPLAINT WITHOUT PREJUDICE AS TO WAGNER AND RICE, GRANTING DEFENDANTS' 27 MOTION T0 DISMISS OR ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF'S COMPLAINT WITH PREJUDICE AS TO SAAD, POTTER, AND KIRKLAND, DENYING PLAINTIFF&# 039;S 33 MOTION TO HOLD SUIT IN ABEYANCE AS MOOT, OVERRULING PLAINTIFF'S 46 OBJECTIONS AND DENYING PLAINTIFF'S 47 MOTION FOR VOLUNTARY DISMISSAL. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/19/18. (Pro Se Petitioner via CM/rrr) (lmm) (Additional attachment(s) added on 3/19/2018: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THUAN MINH PHAM,
Plaintiff,
v.

Civil Action No. 5:16CV176
(STAMP)

JENNIFER SAAD, Warden,
BARBARA WAGNER, Warden,
MS. RICE, Chief of Unit Management,
MS. POTTER, Unit Manager, and
MS. K. KIRKLAND, Case Manager
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE,
GRANTING DEFENDANTS’ MOTION TO DISMISS
CONSTRUED AS A MOTION FOR SUMMARY JUDGMENT
AND DISMISSING PLAINTIFF’S COMPLAINT
WITHOUT PREJUDICE AS TO WAGNER AND RICE,
GRANTING DEFENDANTS’ MOTION TO DISMISS OR
ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT
AND DISMISSING PLAINTIFF’S COMPLAINT
WITH PREJUDICE AS TO SAAD, POTTER, AND KIRKLAND,
DENYING PLAINTIFF’S MOTION TO HOLD SUIT IN ABEYANCE AS MOOT,
OVERRULING PLAINTIFF’S OBJECTIONS AND
DENYING PLAINTIFF’S MOTION FOR VOLUNTARY DISMISSAL
I.

Background

The pro se1 plaintiff, Thuan Minh Pham (“Pham”), an inmate
formerly housed at FCI Hazelton,2 filed this civil action asserting
claims under Bivens v. Six Unknown Federal Narcotics Agents, 403

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).
2

The docket indicates that plaintiff is presently incarcerated
at FCI Hazelton in Bruceton Mills, West Virginia.

U.S. 388 (1971). In his complaint, plaintiff, a Vietnamese citizen
who contends he has a “non-deportable status,” alleges claims
against the defendants for Fifth and Fourteenth Amendment due
process violations regarding his alleged miscalculated custody
classification as a deportable alien.

ECF No. 1.

Plaintiff

requests relief pursuant to 28 U.S.C. § 1331; 28 U.S.C. § 2243,
5 U.S.C. § 702, and the All Writs Act, 28 U.S.C. § 1651, alleging
that the actions of the Federal Bureau of Prisons (“BOP”) have
denied him eligibility for UNICOR work; wrongfully put a Public
Safety Factor (“PSF”) of “Deportable Alien” on his record, causing
him to lose his UNICOR job in the prison; preventing him from
eligibility

for

the

Residential

Drug

Abuse

Treatment

Program

(“RDAP”); barring him from early release to a Residential Reentry
Center (“RRC”)/Halfway House; and incarcerating him over five
hundred miles away from his family.

Id.

The plaintiff contends that he exhausted his administrative
remedies and, as relief, plaintiff seeks injunctive relief in the
form of a directive from this Court to require the BOP to remove
the PSF from his record; transfer him to a minimum security prison
closer to his family; permit him to participate in a RDAP program;
permit him to be released to a RRC/Halfway house; and place him in
a union work facility. Further, he seeks $250,000.00 “for punitive
damages and mental anguish” from each of the named defendants. Id.

2

Defendants filed a motion to dismiss or, alternatively, motion
for

summary

judgment,

along

with

a

memorandum

in

support,

attaching, among other exhibits, a declaration of Lisa Potter. ECF
Nos. 27 and 28.

Defendants assert that (1) plaintiff failed to

administratively challenge his eligibility for prison employment
before filing this case; (2) even if all of plaintiff’s claims were
administratively exhausted, his complaint fails to state a legally
cognizable

Bivens

claim

against

defendants

Saad,

Potter,

and

Kirkland because plaintiff fails to state viable constitutional
claims, the defendants are entitled to qualified immunity; (3) the
BOP has full discretion to classify inmates and federal inmates
have no constitutional right to a specific custody classification;
(4) the BOP has extensive discretion to determine the eligibility
of inmates to participate in rehabilitative programs; Pham has no
constitutional right to participate in RDAP and his assertion that
he was precluded from doing so fails to state a constitutional
claim; (5) the BOP has broad discretion to decide where inmates
will be incarcerated and federal inmates have no constitutional
right to be incarcerated in a particular place, therefore, Pham’s
request to be transferred or released to a RRC or halfway house do
not present constitutional claims; (6) federal inmates have no
constitutional right to employment and therefore, Pham’s claim in
this regard fails to state a viable Bivens claim; and (7) plaintiff

3

has not alleged that he suffered any physical injury, thus he is
precluded from recovering damages for emotional distress.

Id.

Plaintiff filed his response in opposition, styled as a Motion
to Hold 28 U.S.C. § 1331 Bivens Suit in Abeyance Pending 28 U.S.C.
§ 2241 Outcome.

ECF No. 33.

Plaintiff requests “the 1331 matter

to be held in abeyance until such time as the 2241 matter is
resolved.”
arguments

ECF No. 33 at 1.
in

an

attempt

Plaintiff also reiterates his

to

refute

the

defendants’

motion.

Plaintiff “seeks hearing on the issues of his discriminatory
execution

of

a

simple

Federal

sentence

to

prison,

and

the

Constitutional Right to Equal treatment as other inmates.” ECF No.
33-1 at 2.
Defendants

Wagner

and

Rice

filed

a

motion

to

dismiss,

attaching affidavits and other documents, and a memorandum in
support.

ECF Nos. 35 and 36.

In support, defendants Wagner and

Rice argue that the complaint should be dismissed for improper
service

of

process,

lack

of

personal

alternatively, for failure to state a claim.

jurisdiction,

or

ECF No. 36.

Plaintiff filed an untimely “Supplement to Plaintiffs Petition
for Federal Civil Rights Complaint (Bivens Action)” with numerous
attachments, in opposition to the motion to dismiss of defendants
Wagner and Rice.

ECF No. 43.

Plaintiff asserts a new claim of

retaliation, and alleges that the staff at FCI Gilmer and the staff
at

FCI

Hazelton

violated

his

right

4

to

the

exercise

of

a

constitutionally protected activity by transferring him to FCI
Hazelton in retaliation for his having filed the instant civil
rights action, and that the FCI Hazelton staff put a Management
Variable (“MGTV”) on him for exercising his constitutional right to
file this lawsuit.

ECF No. 43 at 3.

Plaintiff also alleges that

after he arrived at FCI Gilmer, his Greater Security Management
Variable should have been removed because “the Shot got Expunged.”
ECF No. 43 at 3.
This civil action was referred to the United States Magistrate
Judge for initial review and report and recommendation pursuant to
Local Rule of Prisoner Litigation Procedure 2. By order entered on
September 15, 2017, this case was reassigned from Magistrate Judge
James E. Seibert to Magistrate Judge Michael John Aloi.
United States Magistrate Judge Aloi entered a report and
recommendation.

ECF No. 44.

The magistrate judge found that

“[w]ith regard to the actions of Defendants Wagner and Rice, who
are both ACCC personnel, Plaintiff has failed to assert any contact
by them with the State of West Virginia, much less the minimum
contact necessary to satisfy the Due Process Clause.”
at 12.

ECF No. 44

Thus, based on the information contained in the complaint,

the magistrate judge concluded that the Court cannot exercise
personal

jurisdiction

over

any

personnel

at

Adams

County

Correctional Center (“ACCC”), because any action they took appears
not to have occurred anywhere in West Virginia, and there is no

5

indication that these defendants had any contact with the State of
West Virginia.
The magistrate judge found that defendants Wagner and Rice
should be dismissed without prejudice as defendants in this matter,
and further, that it is apparent from Pham’s statement regarding
the failure to effectuate service on these two defendants, that he
concedes to their dismissal from this action.
The magistrate judge also found that despite plaintiff’s claim
in his complaint that he exhausted his administrative remedies on
all of his claims, it is apparent from a thorough review of the
record that while plaintiff did exhaust his claims regarding his
“Deportable

Alien”

PSF,

his

request

to

be

transferred

to

a

correctional facility closer to his family, and his claim that the
Deportable Alien PSF precludes his participation in RDAP and/or
being transferred to an RRC, he never even initiated the grievance
process regarding his claim of being denied prison employment
before he filed suit.

ECF No. 44 at 20.

The magistrate judge also states that beyond naming Warden
Saad in the caption of the case in his complaint and identifying
her as a party whose position at FCI Gilmer was the “warden,”
plaintiff never again mentions Warden Saad in his complaint.
No. 44 at 23.

ECF

The magistrate judge concluded that the plaintiff

has failed to identify any action taken by defendant Saad that
violated his constitutional rights, and therefore, Saad, as the

6

Warden of FCI Gilmer, should be dismissed from this case.

ECF No.

44 at 23.
The magistrate judge also found that the record indicates that
BOP

staff

used

their

professional

judgment

when

designating

plaintiff as a deportable alien custody level inmate in October
2005 and that this classification was based on his Vietnamese
citizenship.

Because Pham’s inmate file reveals no information to

suggest that he has become a naturalized United States citizen or
that Immigration and Customs Enforcement has decided not to deport
him, his Deportable Alien PSF has not been removed. The magistrate
judge stated that even if the Court found that the plaintiff’s
custody level was incorrect, such an error does not rise to the
level of a due process violation.
constitutional

right

to

be

placed

An inmate does not have a
in

a

specific

security

classification, and custodial classifications do not create a major
disruption in a prisoner’s environment.
plaintiff

alleges

classification

has

that

his

To the extent that the

“Deportable

prevented

him

from

Alien”
being

PSF

custody

housed

at

lower-security institutions or barred him from participating in
certain rehabilitation programs, the same fails to state a ground
for relief.

ECF No. 44 at 29.

To the extent that plaintiff is

attempting to assert an Equal Protection claim regarding being
subject to restrictions to rehabilitative programs that other
inmates are not subject to, such a claim fails, because he does not

7

show that he is being treated differently from similarly situated
persons, i.e., non-citizen prisoners, or that the restrictions on
community-based treatment or early release are irrational. ECF No.
44 at 30.

Finally, the magistrate judge found that Pham’s claim

that he is entitled to be transferred to a facility closer to his
family, instead of “over (500) miles” away, fails to state a
constitutional claim as well.

ECF No. 44 at 30.

Therefore, the

magistrate judge found that none of plaintiff’s claims regarding
his Deportable Alien PSF and its concomitant effects on his
incarceration and rehabilitative options state a cognizable Bivens
claim against these defendants. Because it appears that no genuine
issue of material fact exists with regard to these claims, the
magistrate judge found that summary judgment on the same should be
granted for defendants Potter and Kirkland.
Lastly,

the

magistrate

judge

ECF No. 44 at 32.

found

that

plaintiff’s

retaliation claims are untimely as they were raised for the first
time over eleven months after he filed the instant Bivens action.
All of these alleged acts occurred almost nine months after
plaintiff filed the instant complaint, and are unrelated to any of
the claims in this Bivens action; moreover, they include claims not
only against FCI Gilmer staff, but also against FCI Hazelton staff,
who are not even named defendants in this action. Accordingly, the
magistrate judge did not consider these claims in the report and
recommendation and advised that if plaintiff wishes to attempt to

8

pursue these new claims, he must file another Bivens complaint and
pay the filing fee.

ECF No. 44 at 32-33.

The magistrate judge recommended that the motion to dismiss of
defendants Wagner and Rice (ECF No. 35), herein construed as a
motion for summary judgment, be granted and plaintiff’s complaint
(ECF No. 1) be dismissed without prejudice as to them; the motion
to dismiss, or alternatively, motion for summary judgment of
defendants Saad, Potter, and Kirkland (ECF No. 27) be granted and
that the plaintiff’s complaint (ECF No. 1) be denied and dismissed
with

prejudice

as

to

them.

Further,

the

magistrate

judge

recommends that plaintiff’s pending motion to hold his 28 U.S.C.
§ 1331 Bivens suit in abeyance pending the 28 U.S.C. § 2241 outcome
(ECF No. 33) be denied as moot.
The magistrate judge informed the plaintiff that “[w]ithin
fourteen (14) days after being served with a copy of the Report and
Recommendation, any party may file with the Clerk of the Court
written objections identifying the portions of the recommendation
to which objections are made, and the basis for such objections. A
copy of such objections should also be submitted to the United
States District Judge.

Failure to timely file objections to this

recommendation will result in waiver of the right to appeal from a
judgment of this Court based upon such Recommendation.

28 U.S.C.

§ 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d
9

91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984).”

ECF No.

45 at 33-34 (emphasis in original).
The plaintiff filed objections to the magistrate judge’s
report and recommendation on February 12, 2018, and raises five
objections.
and

ECF No. 46.

recommendation

by

First, plaintiff objects to the report

stating

that

the

court

has

a

duty

to

liberally construe his pleading as a pro se litigant, and asserts
that “the Magistrate Court’s R&R fails to meet the Fourth Circuit’s
standard regarding a generous - liberally construed claim.” Id. at
2.

Second, plaintiff filed an objection that states “the Court

failed to consider whether Saad is liable for the subordinates
actions.”

Id. at 3.

Third, plaintiff objects to the portion of

the magistrate judge’s report and recommendation which “sets forth
the provision of P.S. 5100.08(H) regarding the Deportable Alien
Public Safety Factor (on page 27 lines 14-16)” and states “Pham
does have an equal protection claim, to be treated like all other
inmates, specifically to have the policy properly applied to him,
and in doing so he is not a deportable alien, for purposes of P.S.
5100.08(H), and should not have been subjected to the Public Safety
Factor.”

Id. at 4.

Fourth, “Pham asks this Court to find that

exhaustion should be excused regarding Pham’s employment claims.”
Id. at 5.

Lastly, plaintiff “asks this Court at a minimum, should

this Court find a dismissal is warranted, that the dismissal be

10

without prejudice, with regards to defendants Kirkland and Potter”
because he has proceeded pro se.

Id. at 6.

Plaintiff then filed a “motion for voluntary dismissal” (ECF
No. 47) in which he requests that this Court “dismiss his claims
without prejudice” on the basis that he presented his claim pro se
and “that this claim may have been presented in a much better
fashion.”

ECF No. 47 at 1.

Plaintiff asserts that he “should be

afforded a dismissal without prejudice, to allow him to revisit the
case with counsel or more experienced assistance.”

ECF No. 47

at 2.
Defendants Saad, Potter, and Kirkland filed a response in
opposition

(ECF

No.

48)

to

plaintiff’s

motion

for

voluntary

dismissal and assert that “Pham’s request is a belated attempt to
circumvent this Court’s pending recommendation that Pham’s claims
against

Saad,

Potter,

and

Kirkland

should

be

dismissed

with

prejudice because Pham failed to present any viable legal claim
against these defendants.”

ECF No. 48 at 1.

Defendants contend

that the plaintiff “waited until it became clear that he is
unlikely to succeed in this case to belatedly ask to voluntarily
dismiss his case without prejudice” and that “[s]uch strategic
gamesmanship, without more, cannot support a voluntary dismissal
after this case has reached its current advanced stage.”

ECF No.

48 at 6. Further, defendants assert that “allowing Pham to dismiss
his complaint without prejudice would undermine the interests of

11

finality, efficiency, expediency, and preserving judicial resources
by

empowering

Pham

to

start

over,

take

another

bite

at

the

proverbial apple, and wholly revive a lawsuit that is already
nearly resolved.”

ECF No. 48 at 6-7.

For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be affirmed and
adopted in its entirety.
II.

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.

Because the petitioner filed

objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which

objections

were

made.

As

to

those

findings

to

which

objections were not filed, the findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”

28

U.S.C. § 636(b)(1)(A).
III.
A.

Discussion

Plaintiff’s General Objection of “Liberal Construction”
First

the

plaintiff

states,

“[a]t

the

onset

of

Phams

objections, he sets forth, a general objection (relating to all of
his claims) to the Magistrates R & R, as it relates to the court’s
duty to liberally construe his pleadings, as a pro se litigant,
“liberally.”

ECF No. 46 at 1-2.

12

A complaint filed by a pro se plaintiff must be “liberally
construed” and “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)); see, e.g., King v. Rubenstein, 825 F.3d 206, 212, 214 (4th
Cir. 2016).
This Court has conducted a de novo review of the magistrate
judge’s report and recommendation and finds that the magistrate
judge

has

afforded

construction

and

the

pro

construed

se

plaintiff’s

plaintiff’s

pleadings

pleadings

liberal

accordingly

throughout the report and recommendation.
B.

Adams County Correctional Center Employees
This Court notes no objection by the plaintiff to the portion

of the magistrate judge’s report and recommendation concerning the
plaintiff’s claims against the Adams County Correctional Center
Employees which finds that this Court lacks jurisdiction.

The

magistrate judge correctly determined that the record shows that
these defendants lacked contact with the State of West Virginia.
Accordingly, for lack of jurisdiction and plaintiff’s statement
regarding
defendants,

the

failure

the

to

magistrate

effectuate
judge’s

service
report

on

these

recommends

two
both

defendants Wagner and Rice should be dismissed without prejudice as
defendants in this matter.

This Court finds no error in any of the

13

above determinations of the magistrate judge and thus upholds his
rulings.
C.

Exhaustion of Administrative Remedies
As part of his objections to the report and recommendation,

plaintiff “asks this Court to find that exhaustion should be
excused regarding Pham’s employment claims” and “asks this Court to
adjudicate this claim on the merits, or in the alternative remand
the

case

back

determination.”

to

the

Magistrate

Court

for

a

merits

based

ECF No. 46 at 5.

Under the Prison Litigation Reform Act (PLRA), a prisoner
bringing an action with respect to prison conditions under 42
U.S.C. § 1983, or any other federal law, must first exhaust all
available

administrative

remedies.

42

U.S.C.

§

1997(e)(a).

Exhaustion as provided in § 1997(e)(a) is mandatory.

Booth v.

Churner, 532 U.S. 731, 741 (2001). A Bivens action, like an action
under

42

U.S.C.

§

1983,

administrative remedies.
(2002).

Because

is

subject

to

the

exhaustion

of

Porter v. Nussle, 534 U.S. 516, 524

exhaustion

is

a

prerequisite

to

suit,

all

available administrative remedies must be exhausted prior to filing
a complaint in federal court.
532 U.S. at 741).

See Porter, at 524 (citing Booth,

Under § 1997e(a), the exhaustion requirement

depends on the “availab[ility]” of administrative remedies: An
inmate must exhaust available remedies, but need not exhaust
unavailable ones.”

Ross v. Blake, 136 S. Ct. 1850, 1858 (2016).

14

Where exhaustion is not apparent from an inmate’s pleading, “a
complaint may be dismissed on exhaustion grounds so long as the
inmate is first given an opportunity to address the issue.” Custis
v. Davis, 2017 U.S. App. LEXIS 5147 (4th Cir. 2017) (quoting Moore
v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008)).
This Court has conducted a de novo review of the portion of
the magistrate judge’s report and recommendation concerning the
plaintiff’s exhaustion of remedies and finds that the plaintiff,
despite opportunity, has not addressed the issue of failure to
exhaust all of his claims.

As a result, only plaintiff’s claims

regarding his Deportable Alien PSF, his request to be transferred
to a correctional facility closer to his family, and his claim that
the Deportable Alien PSF precludes his participation in RDAP and/or
being transferred to an RRC were exhausted. Consistent with Custis
v. Davis, this Court finds that plaintiff has had the opportunity
to address the issue of failure to exhaust his administrative
remedies in regard to his employment claims and finds that his
failure to exhaust his employment claims cannot be excused.
D.

Jennifer Saad, Warden of FCI Gilmer
Plaintiff objects to the magistrate judge’s “recommendation to

dismiss with prejudice, the complaint against defendant Saad” and
states that “[d]efendant Saad, may be held liable, even though not
personally involved in the alleged wrong doing” as a supervisor.
ECF No. 46 at 2.

The plaintiff states that “the Court failed to

15

consider whether Saad is liable for the subordinates actions, and
asks that this Court consider this as part of Pham’s claims, and
should

this

Court

find,

or

the

Magistrate

Court

(upon

a

reconsideration) find no such accountable is warranted then Pham,
concedes to a dismissal with prejudice.”

ECF No. 46 at 3.

Liability in a Bivens case is “personal, based upon each
defendant’s own constitutional violations.” Truloch v. Freeh, 2755
F.2d 391, 402 (4th Cir. 2001) (internal citation omitted).

Thus,

in order to establish liability in a Bivens case, the plaintiff
must specify the acts taken by each defendant which violate his
constitutional rights.

See Wright v. Smith, 21 F.3d 496, 501 (2d

Cir. 1994); Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d
Cir. 1988).

Some sort of personal involvement on the part of the

defendant and a causal connection to the harm alleged must be
shown.

See Zatler v. Wainbright, 802 F.2d 397, 401 (11th Cir.

1986).

Respondeat superior cannot form the basis of a claim for

violation of a constitutional right in a Bivens case.

Rizzo v.

Good, 423 U.S. 362 (1976).
This Court has conducted a de novo review of the portion of
the magistrate judge’s report and recommendation concerning the
plaintiff’s claims against defendant Saad.

This Court finds that

the magistrate judge did, in fact, “consider whether Saad is liable
for the subordinates actions” and finds that plaintiff has failed
to identify any action taken by defendant Saad personally that

16

violated his constitutional rights.

Therefore, this Court finds

that Saad, as the Warden of FCI Gilmer, should be dismissed from
this case.
E.

Defendants Potter and Kirkland
Plaintiff objects to the magistrate judge’s findings in regard

to defendants Kirkland and Potter and states “this Court should not
adopt the R & R’s recommendation to dismiss the claims against
Kirkland and Potter, and should grant Pham’s petition, or in the
alternative remand the case back to the Magistrate Court for
further findings [consistent] with Pham’s objections.”
at 5.

ECF No. 46

The plaintiff’s objection asserts that “[i]t is clear that

Pham is not nor should he ever been classified with the Public
Safety Factor for a “Deportable Alien” and defendants Kirkland and
Potter had a duty to strictly act in accordance with B.O.P. policy,
and

to

properly

accordance

with

apply
policy

5100.08

and

violates

failure

his

to

rights

protection clause of the U.S. Constitution.”

treat

under

Pham

the

in

equal

ECF No. 46 at 5.

Plaintiff objects to the portion of the magistrate judge’s report
and

recommendation

which

“sets

forth

the

provision

of

P.S.

5100.08(H) regarding the Deportable Alien Public Safety Factor (on
page

27

lines

protection

14-16)”

claim,

to

and
be

states

“Pham

does

treated

like

all

have
other

an

equal

inmates,

specifically to have the policy properly applied to him, and in
doing so he is not a deportable alien, for purposes of P.S.

17

5100.08(H), and should not have been subjected to the Public Safety
Factor.”

Id. at 4.

The BOP is responsible for determining the classification and
placement of prisoners, 18 U.S.C. § 3621, and has promulgated
policies and procedures to guide it in carrying out that mandate.
Policy

Statement

(“PS”)

5100.08

addresses

inmate

security

classifications and custody designations, including the use of
PSFs.

Public Safety Factors are designations that account for

“certain demonstrated behaviors which require increased security
measures to ensure the protection of society.”
p. 4.

PS 5100.08, Ch. 2,

A PSF “H” of deportable alien requires that, at a minimum,

the inmate be housed in a Low security level institution.

PS

5100.08, Ch. 5, p. 9. The Deportable Alien Public Safety Factor is
applied to any “male or female inmate who is not a citizen of the
United States.”

PS 5100.08, Ch. 5, p. 9.

This PSF is not removed

unless ICE or the Executive Office for Immigration Review (“EOIR”)
determines that “deportation proceedings are unwarranted or there
is a finding not to deport at the completion or deportation
proceedings.”

PS 5100.08, Ch. 5, p. 9.

The Deportable Alien PSF

would also be removed if the inmate is “naturalized as a United
States citizen.”

Id.

Pursuant to BOP policy, each inmate’s

custody classification is reviewed annually, with the inmate’s unit
team and/or Warden being the final review authority. P.S. 5100.08,
Ch. 6, pp. 1-2. The intent of the Custody Classification System is

18

to permit staff to use professional judgment within specific
guidelines.

Id.

Prison administrators have comprehensive discretion to control
a prisoner’s security classification.
U.S. 78, 88 n.9 (1976).

See Moody v. Daggett, 429

Moreover, a federal inmate’s challenge to

his security classification cannot support a viable Bivens claim
because a federal inmate has no constitutional right to any
particular custody classification.

Grayson v. Bureau of Prisons,

No. 5:11cv2, 2011 WL 7154384 at *5 (N.D. W. Va. July 22, 2011)
Report and Recommendation adopted by Grayson v. BOP, 2012 WL 380426
(N.D. W. Va. Feb. 6, 2012).
This Court has conducted a de novo review of the portion of
the magistrate judge’s report and recommendation concerning the
plaintiff’s claims against defendants Potter and Kirkland and the
Deportable Alien Public Safety Factor, and finds that the record
indicates that BOP staff used their professional judgment when
designating Petitioner as a deportable alien custody level inmate
and this classification was based on his Vietnamese citizenship.
Because Pham’s inmate file reveals no information to suggest that
he has become a naturalized United States citizen or that ICE has
decided not to deport him, his Deportable Alien PSF has not been
removed.
placed

in

An inmate does not have a constitutional right to be
a

specific

security

classification,

and

custodial

classifications do not create a major disruption in a prisoner’s

19

environment.

This Court finds that the plaintiff’s objection to

the portion of the magistrate judge’s report and recommendation
which “sets forth the provision of P.S. 5100.08(H) regarding the
Deportable Alien Public Safety Factor” fails and thus, plaintiff’s
objections are overruled.
F.

Plaintiff’s Retaliation Claims
This Court has conducted a review of the portion of the

magistrate

judge’s

report

and

plaintiff’s retaliation claims.

recommendation

concerning

the

The magistrate judge correctly

found that plaintiff’s retaliation claims were raised for the first
time over eleven months after he filed the instant Bivens action.
All of these alleged acts occurred almost nine months after
plaintiff filed the instant complaint, and are unrelated to any of
the claims in this Bivens action; moreover, they include claims not
only against FCI Gilmer staff, but also against FCI Hazelton staff,
who are not even named defendants in this action. Accordingly, the
magistrate judge did not consider these claims in the report and
recommendation and advised that if plaintiff wishes to attempt to
pursue these new claims, he must file another Bivens complaint and
pay the filing fee.

ECF No. 44 at 32-33.

Because the plaintiff

did not object to this portion of the report and recommendation of
the magistrate judge, and because this Court finds that the
magistrate judge’s recommendation is not clearly erroneous, the
magistrate judge’s report and recommendation as to plaintiff’s

20

retaliation claims is upheld and the plaintiff is advised that if
he wishes to pursue these new claims, he must file another Bivens
complaint and pay the filing fee.
G.

Plaintiff’s Request for Dismissal Without Prejudice
The plaintiff, in his objections, “asks this Court at a

minimum, should this Court find a dismissal is warranted, that the
dismissal be without prejudice, with regards to defendants Kirkland
and Potter” and states that “they should not be shielded from
culpability, because Pham is incarcerated, unfamiliar with the law,
unable to afford counsel, and received inadequate assistance from
the then available jailhouse lawyer.”

ECF No. 46 at 6.

plaintiff reiterates his objections in his conclusion.
at 7-8.

The

ECF No. 46

Plaintiff also filed a “motion for voluntary dismissal”

(ECF No. 47) in which he requests that this Court “dismiss his
claims without prejudice” on the basis that he presented his claim
pro se and “that this claim may have been presented in a much
better fashion.”

ECF No. 47 at 1.

Plaintiff asserts that he

“should be afforded a dismissal without prejudice, to allow him to
revisit the case with counsel or more experienced assistance.” ECF
No. 47 at 2.
Defendants Saad, Potter, and Kirkland filed a response in
opposition

(ECF

No.

48)

to

plaintiff’s

motion

for

voluntary

dismissal and assert that “Pham’s request is a belated attempt to
circumvent this Court’s pending recommendation that Pham’s claims

21

against

Saad,

Potter,

and

Kirkland

should

be

dismissed

with

prejudice because Pham failed to present any viable legal claim
against these defendants.”

ECF No. 48 at 1.

Defendants contend

that the plaintiff “waited until it became clear that he is
unlikely to succeed in this case to belatedly ask to voluntarily
dismiss his case without prejudice” and that “[s]uch strategic
gamesmanship, without more, cannot support a voluntary dismissal
after this case has reached its current advanced stage.”

ECF No.

48 at 6. Further, defendants assert that “allowing Pham to dismiss
his complaint without prejudice would undermine the interests of
finality, efficiency, expediency, and preserving judicial resources
by

empowering

Pham

to

start

over,

take

another

bite

at

the

proverbial apple, and wholly revive a lawsuit that is already
nearly resolved.”

ECF No. 48 at 6-7.

This Court has conducted a de novo review of the portion of
the magistrate judge’s report and recommendation recommending that
Pham’s

claims

against

Saad,

Potter,

and

Kirkland

should

be

dismissed with prejudice because Pham failed to present any viable
legal claim against these defendants.

ECF No. 48 at 1.

This Court

has also considered plaintiff’s “motion for voluntary dismissal”
(ECF No. 47) and the response

in opposition of defendants Saad,

Potter, and Kirkland (ECF No. 48).
Federal

Rule

of

Civil

Procedure

Rule

41(a)(2)

allows

a

plaintiff, with the approval of the court, to dismiss voluntarily

22

an action without prejudice at any time.
F.2d 1270, 1273 (4th Cir. 1987).

Davis v. USX Corp., 819

The purpose of Rule 41(a)(2) is

to freely allow voluntary dismissals unless the parties will be
unfairly prejudiced. Id. In determining whether the circumstances
are proper for voluntary dismissal, a determination which lies
within

a

district

court’s

discretion,

focus

must

be

“primarily on protecting the interests of the defendant.”

placed
Id.

To

grant voluntary dismissal without prejudice when “summary judgment
is imminent” is improper.

Id. at 1274.

Further, prejudice to the

defendant has even been found simply when time and effort have been
expended to move for summary judgment.

Armstrong v. Frostie Co.,

453 F.2d 914, 916 (4th Cir. 1971).
This Court finds that plaintiff’s contentions cannot support
a voluntary dismissal as it is clear that this motion serves to
avoid the negative ramifications of a memorandum opinion and order
by

this

Court

dismissing

plaintiff’s

claims

with

prejudice.

Federal defendants Saad, Potter, and Kirkland moved this Court to
dismiss

Pham’s

complaint

or,

alternatively,

to

grant

summary

judgment in their favor because Pham had not administratively
exhausted all of his claims and his complaint fundamentally failed
to present any cognizable or viable legal claim (ECF No. 27 and ECF
No. 28).

This Court believes that it is clear that voluntary

dismissal at this stage of this litigation is inappropriate and

23

thus, plaintiff’s objection is overruled and plaintiff’s motion for
voluntary dismissal is denied.
IV.

Conclusion

For the above reasons, the magistrate judge’s report and
recommendation (ECF No. 44) is ADOPTED AND AFFIRMED. The motion to
dismiss

of

construed

defendants
as

a

motion

Wagner
for

and

summary

Rice

(ECF

judgment,

No.
is

35),

herein

GRANTED

and

plaintiff’s complaint (ECF No. 1) is DISMISSED WITHOUT PREJUDICE as
to them.

The motion to dismiss, or alternatively, motion for

summary judgment of defendants Saad, Potter, and Kirkland (ECF No.
27) is GRANTED and plaintiff’s complaint (ECF No. 1) is DENIED and
DISMISSED WITH PREJUDICE as to them.

Plaintiff’s motion to hold

his 28 U.S.C. § 1331 Bivens suit in abeyance pending the 28 U.S.C.
§ 2241 outcome (ECF No. 33) is DENIED AS MOOT and the plaintiff’s
objections to the report and recommendation (ECF No. 46) are
OVERRULED.

Further, plaintiff’s motion for voluntary dismissal

(ECF No. 47) is DENIED.
Should the plaintiff choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made or those that this Court
otherwise determined de novo, he is ADVISED that he must file a
notice of appeal with the Clerk of this Court within 60 days after
the date of the entry of this order.
IT IS SO ORDERED.

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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein. Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

March 19, 2018

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

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