Saunders v. Johnson et al

Filing 75

MEMORANDUM OPINION AND ORDER: The court CONFIRMS and ACCEPTS Magistrate Judge Aboulhosn's 69 Proposed Findings and Recommendation, GRANTS defendants' 59 Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, and DIRECTS the Clerk to remove this case from the court's docket. Signed by Senior Judge David A. Faber on 9/28/2017. (cc: plaintiff, pro se and all counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
EDWARD HAROLD SAUNDERS, JR.,
Plaintiff,
v.

CIVIL ACTION NO. 1:16-10159

B.J. JOHNSON, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is “Plaintiff’s Objections to the
Magistrate’s Findings and Recommendations.”

ECF No. 72.

Plaintiff objects to Magistrate Judge Omar J. Aboulhosn’s
Proposed Findings and Recommendation (“PF&R”), which recommended
that this court grant Defendants’ Motion to Dismiss or in the
Alternative, Motion for Summary Judgment, ECF No. 59, and
dismiss plaintiff’s Complaint.
I.

ECF No. 69.

PROCEDURAL BACKGROUND1

Plaintiff sued 12 correctional officers (“Defendants”) on
October 27, 2016 alleging violations of his constitutional and
civil due process rights under Bivens v.
Agents of

1

Federal

Bureau of

Narcotics,

Six
403

Unknown
U.S.

Federal

388

Because plaintiff acts pro-se, the facts outlined here are in
the light most favorable to plaintiff. Haines v. Kerner, 404 U.S.
519, 520-21 (1972). Nevertheless, it must be noted that plaintiff
is not foreign to the federal court system, filing no less than 21
independent lawsuits while incarcerated. See ECF No. 72, p. 3.

(1971).

ECF No. 3.

Specifically, plaintiff alleges defendants

withheld his personal belongings – newspapers, magazines, books,
and family pictures – while he was in solitary confinement
(“Special Housing Unit” or “SHU”) of Federal Correctional
Institution, McDowell (“FCI McDowell”).

ECF No. 3, p. 4-5.

On November 16, 2016, plaintiff filed a “Motion Requesting
Leave to Amend Complaint” to (1) modify the names of defendants
and (2) provide additional factual details regarding plaintiff’s
allegations.

ECF No. 26.

The Motion was accompanied by

plaintiff’s First Amended Complaint (“FAC”).

ECF No. 29.

Magistrate Judge Aboulhosn granted plaintiff’s motion and
directed that the FAC be filed.

ECF No. 28.

The PF&R

extensively details the factual modifications in the FAC.
No. 69, p. 3-4.

ECF

Of note, plaintiff’s FAC includes affidavits of

other FCI McDowell inmates to illustrate that other SHU inmates
were provided additional items of mail, inconsistent with the
SHU Rules and Regulations, and thus plaintiff was targeted
unfairly.

ECF No. 66-1, pp. 6-12.

Two months later, defendants filed a Motion to Dismiss, or
in the Alternative, Motion for Summary Judgment and accompanying
Memorandum of Law in Support.

ECF Nos. 59 and 60.

Magistrate

Judge Aboulhosn recommended that defendants’ motion be granted
on July 24, 2017.

ECF No. 69.

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II.

FACTUAL BACKGROUND

Plaintiff was incarcerated at FCI McDowell from February
17, 2016 to December 1, 2016.

ECF No. 69-2.

Plaintiff was

placed in SHU on March 9, 2016, after refusing to voluntarily
change prison cells.

Upon placement in SHU, plaintiff received

a copy of the SHU Rules and Regulations and signed a Receipt and
Acknowledgement Form.

ECF No. 59-1, pp. 62-63.

SHU Rules and

Regulations limit the personal belongings an inmate may possess.
ECF No. 59-1, pp. 62-63, 65.

Importantly, the Regulation lists

“Authorized Items” to include “2 paperback books (book cart
only)” and “Mail (received in SHU only) – 10 pieces.”
59-1, pp. 62-63, 65.

ECF No.

Defendants state that limitations on

personal property in SHU cells are necessary because of “fire
safety, security, and sanitation/housekeeping issues based upon
limited cell space in SHU.”

ECF No. 60, p. 5.

On two occasions in March 2016, plaintiff asked SHU
correctional officer defendants, J. Moore and B.J. Johnson, to
explain why he was not receiving his personal property since
placement in SHU.

FAC at ¶ 50-52.

Both correctional officers

allegedly responded that consistent with a memorandum signed by
FCI McDowell’s warden, B.J. Johnson, (“Warden Memorandum”),
plaintiff’s belongings were being retained by FCI McDowell until
his release from SHU.

Id.

Plaintiff requested a copy of the

Warden Memorandum but never received a copy.
3

Id.

Defendants do not dispute that plaintiff never received a
copy of this Warden Memorandum (or affirm or deny that any
Warden Memorandum exists) but instead state that defendants’
actions complied with SHU Rules and Regulations, for which the
plaintiff signed a Receipt and Acknowledgement Form.

ECF No.

59-1, pp. 62-63, 67.
Plaintiff remained in SHU at FCI McDowell until his
transfer to FCI Forrest City in Arkansas on December 1, 2016.
Despite plaintiff’s belief that he was treated unfairly in SHU,
upon transfer, plaintiff’s personal property was inventoried and
found to be consistent with SHU policy and included two books,
legal materials, and 20 photographs (more than SHU policy).

ECF

No. 59-1, pp. 68-69.
III. STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this
court. The recommendation bears no presumptive weight, and it is
this court’s responsibility to make a final determination.
Mathews v. Weber, 423 U.S. 261 (1976).

See

The court is charged

with making a de novo determination of any portion of the PF&R
to which a specific objection is made.

The court may accept,

reject, or modify, in whole or in part, the recommendation made
by the magistrate judge or recommit the matter to the magistrate
judge with instructions.

See 28 U.S.C. § 636(b).

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IV.

RECOMMENDATION

In recommending that this court grant defendants’ Motion to
Dismiss or in the Alternative Motion for Summary Judgment,
Magistrate Judge Aboulhosn made the following findings:
(1)

Defendants cannot
capacities;

be

sued

in

their

official

(2)

Defendant, D. Kendrick should be dismissed as an
incorrectly named defendant;

(3)

Plaintiff’s alleged emotional and psychological
damage is not entitled to monetary damages under
the Prison Litigation Reform Act, 42 U.S.C. §
1997(e);

(4)

Monetary damages may not be awarded under Bivens
for First Amendment violations;

(5)

Even if money damages could be awarded for First
Amendment violations under Bivens, the SHU Rules
and Regulations are rationally related to a
legitimate security interest; and

(6)

SHU Rules and Regulations did not result in a
constitutional deprivation of plaintiff’s due
process
rights,
and
proper
notice
of
SHU
regulations was provided to plaintiff.

ECF No. 69.
V.

DISCUSSION OF PLAINTIFF’S OBJECTIONS

Plaintiff filed objections to Magistrate Judge Aboulhosn’s
PF&R on September 18, 2017,2 after having sought and received an
enlargement of time from the court.

2

ECF No. 72.

Plaintiff was required by the court to object on or before
September 8, 2017.
ECF. No. 71.
While plaintiff’s objections
were received 10 days past this deadline, the court’s review
indicates that plaintiff’s cover letter was dated September 8,
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Plaintiff’s objections focus on the fact that (1) he never
received reasonable notice of the policies established by the
Warden Memorandum and (2) that defendants should be able to be
sued for monetary damages under Bivens for First Amendment
violations. Id. at ¶¶ 1-13, 16-19.

Plaintiff neglects to object

to the first three (3) findings of the PF&R,

see supra at 5,

and the court finds that the record and the applicable law
support these findings.
A. The Supreme Court Has Refused to Allow Claimants to Seek
Monetary Damages for First Amendment Violations Under
Bivens.
The Supreme Court has refused to allow a Bivens remedy for
a First Amendment violation.

See Ashcroft v. Iqbal, 556 U.S.

662, 676 (2009); Reichle v. Howards, 566 U.S. ___, 132 S. Ct.
2088, 2093, n. 4 (2012)(“We have never held that Bivens extends
to First Amendment claims.”).

Consistent with the principle of

judicial restraint, this court refuses to create a new cause of
action under Bivens.

Holly v. Scott, 434 F.3d 287, 290 (4th

Cir. 2006)(this “Court has therefore on multiple occasions
declined to extend Bivens because Congress is in a better
position to decide whether or not the public interest would be
served by the creation of new substantive legal liability.”).

2017.
See ECF No. 72-1.
Therefore, the court finds the
plaintiff’s objections are timely and reviews the merits of his
objections.
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Accordingly, this court need not dwell upon Magistrate
Judge Aboulhosn’s fifth finding: whether SHU Rules and
Regulations were rationally related to a legitimate security
interest.3
B. Plaintiff’s Liberty Interests Were Not Deprived by
Literature Limitations Placed on Plaintiff While in SHU.
Although the Fifth Amendment of the United States
Constitution prohibits the federal government from depriving any
person of “life, liberty, or property, without due process of
law,” the range of protected liberty interests for defendants
convicted and confined in prison are significantly reduced for
their period of incarceration.

See U.S. Const. Amend. XIV, § 1;

Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir.1991).
To determine if an inmate retains a certain liberty
interest, the Court must look to the nature of the claimed
interest and determine whether the Due Process Clause is
implicated.
71(1972).

See Board of Regents v. Roth, 408 U.S. 564, 570–

An inmate holds a protectable right in interests to

which he has a legitimate claim of entitlement.

Greenholtz v.

Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 7
(1979)(quoting Roth, 408 U.S. at 577).

3

An inmate possesses a

Even if SHU Rules and Regulations impinged on plaintiff’s
constitutional rights, in light of the record, review would likely
result in a finding that the policy is “reasonably related to
legitimate penological interests.” See Turner v. Safely, 482 U.S.
78, 89 (1987).
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claim of entitlement in those interests “which were not taken
away expressly or by implication, in the original sentence to
confinement.”

Gaston, 946 F.2d at 343.

To demonstrate the

deprivation of a liberty interest protected by the Due Process
Clause, an inmate must show either that: (1) the conditions
exceed the sentence imposed in such an unexpected manner as to
give rise to protection by the Due Process Clause, or (2) the
confinement creates an atypical or significant hardship in
relation to the ordinary incidents of prison life.
Conner, 515 U.S. 472, 484 (1995).

Sandin v.

Absent allegations indicating

that there has been a restraint upon the inmate's freedom
imposing “an atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life,” an inmate's
claims possess no merit. Id.
Applying the principles outlined in Sandin, the limitations
of literature placed upon plaintiff neither amount to a
condition exceeding his sentence in an unexpected manner nor do
they create “an atypical or significant hardship in relation to
the ordinary incidents of prison life.”

Id.

Whether

correctional officers were following SHU Rules and Regulations
or an unknown Warden Memorandum makes no difference.
Moreover, to the extent that plaintiff complains that
defendants misapplied the prison’s policies concerning
literature available to inmates, plaintiff’s claim fails because
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due process is not implicated where no liberty interest exists.
See Petway v. Lappin, 2008 WL 629998 (N.D.W. Va. Mar. 5, 2008)
(“[D]ue process complaints concerning either the misapplication
of policy and procedures, or a lack of official rules and
regulations, must fail” because the inmate had no protected
liberty interest in avoiding segregation).
VI.

CONCLUSION

For the reasons stated above, the court CONFIRMS and
ACCEPTS Magistrate Judge Aboulhosn’s proposed findings and
recommendation, GRANTS defendants’ Motion to Dismiss, or in the
Alternative, Motion for Summary Judgment, and DIRECTS the Clerk
to remove this case from the court’s docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to plaintiff, pro se, and all
counsel of record.
IT IS SO ORDERED this 28th day of September, 2017.
ENTER:
David A. Faber
Senior United States District Judge

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