Kenney v. Laugh

Filing 20

MEMORANDUM OPINION AND ORDER: The Court ORDERS that the 12 Proposed Findings and Recommendation by Magistrate Judge be ADOPTED, Plaintiff's 1 Application to Proceed without Prepayment of Fees and Costs be DENIED, Plaintiff's 2 Complaint be DISMISSED, and this matter be removed from the Court's docket. Signed by Judge Irene C. Berger on 10/25/2013. (cc: Magistrate Judge VanDervort; attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
MILTON ORR KENNEY,
Plaintiff,
v.

CIVIL ACTION NO. 5:12-cv-07012

SHAWN LAUGH,
Defendant.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Plaintiff=s October 26, 2012 Application to Proceed Without
Prepayment of Fees and Costs and Complaint for the Violation of Civil Rights Under 42 U.S.C. '
1983 (Document 1 and 2), brought on the grounds, inter alia, that the Defendant, a counselor at
FCI Beckley, the prison where Plaintiff is housed, defamed and impugned his reputation by
determining that he should have a Public Safety Factor (“PSF”) classification of sex offender.1
Plaintiff also argues that his Fifth and Fourteenth Amendment rights were violated, as well as
Bureau of Prisons (“BOP”) policy, when he was allegedly falsely labeled and called a sex
offender. He claims to have suffered emotional distress, weight loss from worrying, and damage
to his reputation and character.
By Standing Order (Document 3) entered on October 26, 2012, this action was referred to
the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court
of proposed findings of fact and recommendation (“PF&R”) for disposition, pursuant to 28 U.S.C.

1
Plaintiff had originally filed a 42 U.S.C. § 1983 claim, but the Magistrate Judge converted the § 1983 claim to
a Bivens type action as Plaintiff is an inmate under federal custody, sentenced on a federal conviction.

' 636. On August 5, 2013, the Magistrate Judge submitted a Proposed Findings and
Recommendation (Document 12) wherein it is recommended that this Court DENY Plaintiff’s
Application to Proceed Without Prepayment of Fees and Costs, DISMISS Plaintiff’s Complaint
without prejudice and remove this matter from the Court’s docket.
After thorough review and consideration of the Complaint, the PF&R, Plaintiff’s
objections to the PF&R and attached exhibits, the Court does hereby ORDER that the Magistrate
Judge’s Proposed Findings and Recommendation be ADOPTED.
I.

RELEVANT FACTS AND FINDINGS OF MAGISTRATE JUDGE

Magistrate Judge VanDervort’s PF&R sets forth in great detail Plaintiff’s previous and
current motions. The Court incorporates by reference the facts and procedural history contained
in the PF&R. To further provide context for the ruling herein, however, the Court provides the
following summary.
On October 26, 2012, Plaintiff, an inmate at FCI Beckley and acting pro se, filed his
Complaint for the Violation of Civil Rights Under 42 U.S.C. Section 1983. The Plaintiff names
Shawn Laugh as the sole Defendant (Document 2 at 4), and alleges that he tried to “get me to sign
papers saying I was a sex offender [but] I refused to sign the Paper’s because my case of
‘Unlawful Imprisonment’ and ‘Fourth Degree Assault’ was (sic) not a sex offense nor sexual
assault.” (Id. at 5.) The Plaintiff claims this categorization by Defendant Laugh defamed him and
violated his “Constitutional Rights, [namely the] 5th and 14th Amendment[s].” (Id. at 33.) He
seeks relief in the form of “Two Hundred and Fifty Thousand Dollars.” (Id. at 36.)
The Magistrate Judge found the Plaintiff’s Complaint to be critically flawed in several
respects. Specifically, the Magistrate Judge found that pursuant to the Supreme Court’s decision
in Siegert v. Gilley, 500 U.S. 226 (1991), and Paul v. Davis, 424 U.S. 693 (1976), defamation,

alone, is not a constitutional deprivation nor actionable under 42 U.S.C. § 1983. (Document 12 at
7.) Similarly, Magistrate VanDervort found that an action for defamation cannot lie against the
United States under the Federal Tort Claims Act. 28 U.S.C. ' 2680(h). (Id. at 7, n.2.) The
Magistrate Judge also relied on the declarations in Moody v. Daggert, 429 U.S. 78 (1976), and
Meachum v. Fano, 427 U.S. 215 (1976), that the BOP enjoys full discretion and wide latitude with
regard to inmate classification determinations, and that under Posey v. Dewalk, 86 F.Supp 2d 565
(E.D.Va. 1999), inmates cannot claim a violation of due process because they have no protected
liberty interest in any particular classification within the BOP. (Id. at 7-8.) Citing to Sandin v.
Connor, 515 U.S. 472 (1995), the Magistrate Judge found that prison regulations and
classifications are not designed to confer rights on or benefits to inmates, but rather are
administrative tools necessary to the functioning of the prison system. (Id. at 9.) Thus, with
respect to the foregoing authority, the Magistrate Judge recommended that because the “Plaintiff
has not stated and cannot state a viable claim under Bivens that his constitutional rights were
violated in Defendant’s determination of [Plaintiff’s] [Public Safety Factors] classification,”
(Document 12 at 8), his Complaint should be dismissed without prejudice. (Id. at 9.)
II.

STANDARD OF REVIEW

In accordance with the provisions of 28 U.S.C. § 636(b), the Plaintiff was allotted fourteen
(14) days, plus three (3) mailing days, in which to file any written objection to the proposed
findings and recommendation. 2 As a result, objections to Magistrate Judge VanDervort’s
Proposed Findings and Recommendation were due on August 22, 2013. The Plaintiff timely filed
objections to the PF&R on August 22, 2013. 3 (See Objection to Proposed Findings and

2
See Proposed Findings and Recommendation (Document 12 at 9); see also 28 U.S.C. § 636(b)(1)
and Fed.R.Civ.P. 72(b)(2).
3
Plaintiff’s docket reflects two entries titled “OBJECTION to the Proposed Findings and

Recommendations (“Pl.’s Objections”) (Document 16)) 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, this Court need not conduct a de novo review when a
party “makes general and conclusory objections that do not direct the Court to a specific error in
the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982) (citations omitted). When reviewing portions of the PF&R de novo, the Court will
consider the fact that Petitioner is acting pro se, and his pleadings will be accorded liberal
construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295
(4th Cir.1978).
III.

APPLICABLE LAW

With respect to a claim for defamation against the United States, 28 U.S.C. §2680(h) states,
in part, that “[t]he provisions of this chapter … shall not apply to—[a]ny claim arising out of …
libel, slander… .” With respect to alleged deprivations of the Fifth or Fourteenth Amendments,
“[t]he federal constitution itself vests no liberty interest in inmates in retaining or receiving any
particular security or custody status [a]s long as the [challenged] conditions or degree of
confinement … is within the sentence imposed … and is not otherwise violative of the
Constitution.” Slezak v. Evatt, 21 F.3d 590, 594 (4th Cir. 1994) (quotations emitted).
It is within the discretion of the BOP to determine sex offender PSF classification “if the
Presentence Investigation Report (PSR), or other official documentation, clearly indicates” that
Recommendations by Magistrate Judge, by Milton Orr Kenney” dated August 7 and August 22, 2013, respectively.
Upon careful consideration, however, this was simply a clerical error and Plaintiff filed only one set of Objections,
dated August 22, 2013. (Document 16.) The first letter cannot be categorized as an objection because it cleared prison
mailroom processing August 5, 2013, the same day the Magistrate Judge’s PF&R was filed. Regardless, the August 7,
2013 letter contains no discernible objections but instead proffers additional “paperwork that helps [Plaintiff’s] case.”
(Document 14.)

the Defendant engaged “in sexual contact with another sans consent” or “any sexual contact with a
minor or other person physically or mentally incapable of granting consent.” (P.S. 5100.08 ch. 5
page 8.) Notably, a conviction is not required for the application of PSF dealing with sex offender
classifications. (Id.) BOP officials are also allowed to base their classification on “behavior in the
current term of confinement or prior history … .” (Id.) Importantly, Federal inmates have no
cognizable liberty interest in a particular custody classification. Watts v. Federal Bureau of
Prisons, No. 7:05-cv-00601, 2006 WL 240787, at *1 (W.D.Va. Jan. 31, 2006); Moody v. Daggett,
429 U.S. 78, 88 at n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976).
IV.

DISCUSSION

In his Objection filed August 22, 2013, the Plaintiff restates the allegations listed in his
Complaint (see Pl.’s Objections at 1-9, 11), and encloses various exhibits previously filed with this
Court, including: (1) an article titled “Drugs and Your Baby”; (2) 18 U.S.C. § 3553(a); (3) a page
from Black’s Law Dictionary where “sexual assault” is defined; and (4) a page from the BOP’s
Program Statement 5141.02 establishing a procedure for identifying inmates who have committed
sexual offenses, notifying law enforcement before their release and advising them of treatment
programs. (Id. at 13-17.) The Plaintiff begins the letter by stating “[d]efamation of my character
is very stressful…” (Id. at 1), and “I shall not be deprived of equal protection of the law” (Id. at 6.),
and that “Shawn Laugh published false information about me and has violated the 5th and 14th
Constitutional Right and the 5141.02 and 18 U.S.C. 4042(c) Prison Policy.” (Id. at 4.) He also
cites North Carolina v. Clifton A. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2012, 23 L.Ed. 2d 656, and
U.S. v. Epley, 52 F.3d 571, 576 (6th Cir.), for the proposition that “I shall not be punished twice for
the same offense.” (Id. at 7.)

The Plaintiff’s “objection” letter continues to provide the Court with certain background
information from his original conviction and proclaims that ‘[t]he most important thing is to
protect my childs (sic) life – she is depending on me to protect her and I did protect her.” (Id. at 4.)
The Plaintiff objects to the Magistrate’s finding that he has not stated a claim upon which relief can
be granted because “I have clearly shown a Violation of my Rights. Relief can be granted when
Publication is False and Violation of Prison Policy and a Violation of the 5th and 14th Amendment.
Total relief shall be granted when the law and Constitution has been violated. Shawn Laugh has
clearly violated my Constitutional Rights so im (sic) entitled to relief.” (Id. at 11.)
Simply put, the Plaintiff has not challenged the Magistrate Judge’s recommendation or
reasoning, but rather continues to rattle off facts not wholly relevant to the instant determination.
He fails to bring to the Court’s attention any factual or legal gap in the Magistrate Judge’s PF&R
upon which to base an objection or challenge.
Even assuming arguendo that the Plaintiff has a liberty interest with respect to the sex
offender classification, the record4 before this Court indicates that the Plaintiff was provided at
least some ability to challenge his classification, both during the group counseling meeting(s) with
Shawn Laugh, and later through exhaustion of available penal administrative remedies. Thus, it
cannot be said that the Plaintiff was denied due process to support a challenge to the perceived
misclassification.
To the extent that Plaintiff’s August 22, 2013 letter, which contains a recitation of his
original allegations, case law, and circumstances surrounding a Kentucky conviction, may be
considered an objection, the Court OVERRULES the same.

4
It must be noted that the record before this Court is lacking in some regard with respect to both the basis of the
sex offender classification and the scope of process afforded the Plaintiff from which to challenge the PSF
determination.

V.

CONCLUSION

Accordingly, the Court incorporates herein the findings and recommendation of the
Magistrate Judge as contained in the Proposed Findings and Recommendation, and ORDERS that
the Magistrate Judge’s Proposed Findings and Recommendation (Document 12) be ADOPTED,
Plaintiff’s Application to Proceed Without Prepayment of Fees and Costs (Document 1) be
DENIED, Plaintiff’s Complaint (Document 2) be DISMISSED and this matter be removed from
the Court’s docket.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
VanDervort, to counsel of record, and to any unrepresented party.
ENTER:

October 25, 2013