United States District Court, D. Columbia.
THOMAS LEE RUSH, Plaintiff, Pro se, BUTNER, NC.
For CHARLES E. SAMUELS, JR., Director, Federal Bureau of Prisons, Defendant: William Mark Nebeker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
BERYL A. HOWELL, United States District Judge.
This matter is before the Court on defendant Charles E. Samuels, Jr.'s Motion to Dismiss or in the Alternative for Summary Judgment, ECF No. 10, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6) and 56. The plaintiff, Thomas Lee Rush, filed this lawsuit alleging that the defendant infringed the plaintiff's First Amendment rights to petition the government for redress of grievance, in violation of 42 U.S.C. § 1983. Compl. ¶ V, ECF No. 1. For the reasons discussed below, the defendant's motion is granted and this action is dismissed.
As summarized below, the plaintiff's complaint stems from his lengthy administrative dispute with the Federal Bureau of Prisons (" BOP" ) over his designation as a " Central Inmate Monitoring" Case.
A. Central Inmate Monitoring (" CIM" ) Assignment
The plaintiff currently is in the custody of BOP serving a 447-month aggregate term of imprisonment for his convictions in 1998 and 1990, in the United States District Court for the Northern District of Florida, Case Nos. GCR 88-01004-01 and GCR 90-01008-01, respectively, for the following offenses:
[in 1998], the plaintiff received a 360-month sentence for: Conspiracy to Possess Marijuana, Methamphetamine and Cocaine . . . ; Possession with Intent to Distribute Marijuana . . . ; Possession with Intent to Distribute Methamphetamine . . . ; and Conceal Material Facts . . . . [In 1990], the plaintiff received an 87-month sentence, to be served consecutively to the 360-month sentence, for: Possession of Unregistered Firearm . . . ; Transfer of Illegal Firearm . . . ; Possession of a Firearm With No Identification Number and Silencer . . . ; and Possession of a Firearm by a Convicted Felon, Conspiracy to Possess Unregistered Firearm and Illegally Transfer Firearms . . . .
Memorandum of Points and Authorities in Support of Motion to Dismiss or in the Alternative for Summary Judgment, ECF No. 10 (" Def.'s Mem." ), Declaration of Steven Norris, ECF No. 10-4 (" Norris Decl." ) ¶ 14.
" The BOP monitors and controls the transfer, temporary release, and community activities of certain inmates who present special needs for management, known as central inmate monitoring (CIM) cases." Norris Decl. ¶ 4. For example, a CIM is assigned to an inmate " who ha[s] made threats to government officials or who ha[s] been identified, in writing, by the United States Secret Service as requiring special surveillance." Id., Attachment (" Attach." ) 1 (Program Statement 5180.05, Central Inmate Monitoring System, 12/31/2007) at 3. The BOP deems the plaintiff a CIM case. See Supporting Memorandum of Points and Authorities for Complaint Under the Civil Rights Act 42 U.S.C. § 1983, ECF No. 1-2 (" Pl.'s Mem." ) at 1; see id., Exhibit (" Exh." ) 2 (Notification of Central Inmate Monitoring (CIM) Classification or Declassification dated April 27, 1992).
The origin of the plaintiff's CIM assignment is described as follows:
17) Records indicate that the BOP's Southeast Regional Designator received correspondence dated March 29, 1989, from an Assistant United States Attorney (AUSA) informing him the plaintiff had plotted several murders from his cell at FCI Memphis and attempted to carry out those plots. The correspondence indicated that during a recorded telephone conversation with . . . a purported hit-man, the plaintiff clearly stated that the murder of the Honorable Maurice Paul, who presided over Case No. GCR 88-01004-01, was his idea. As payment for the murder, the plaintiff identified the names of drug dealers who owed him money and informed the hit-man he could keep half of all he collected. The plaintiff also expressed his wishes that a DEA agent, an agent of the Florida Department of Law Enforcement, and several additional co-conspirators be murdered.
18) Records indicate that on July 24, 1989, the United States Marshals Service (USMS) notified the BOP that the plaintiff was under investigation by the USMS for making a specific or implied threat to the federal judiciary. . . .
19) . . . [O]n February 15, 1990, the plaintiff was indicted in Case No. 90-01008-01 . . . .
20) Plaintiff was sentenced in Case No. GCR 90-01008-01 on October 15, 1990 . . . . Via correspondence dated October 17, 1990, the AUSA again provided information regarding the plot to kill Judge Paul and stated that despite strong physical evidence, the plaintiff was acquitted of all three attempted murder counts.
21) Records indicate on October 31, 1990, the BOP's Community Corrections Office located in Atlanta, Georgia updated the plaintiff's security and custody classification following his conviction and sentencing in Case No. GCR 90-01008-01 . . . . At that time, it was noted an interim CIM assignment of Government Threat was assigned based on information contained in the pre-sentence investigation report.
Norris Decl. ¶ ¶ 17-21 (emphasis added).
A '" Threat to Government Officials' assignment . . . does not require an inmate to have been convicted of actually attempting to harm the government official, merely that a threat was made." Id. ¶ 5. Accordingly, even though the plaintiff " was acquitted of [the] attempted murder counts," id. ¶ 20, he is still assigned a " Threat to Government Officials" CIM, see id. ¶ ¶ 5, 17-24. The plaintiff also is " assigned . . . a Public Safety Factor (PSF) of 'Threat to Government Officials' as a result of his CIM assignment of Threat to Government Officials," id. ¶ 24, which " requires [that he] be housed in at least a Low security level institution[,]" id. ¶ 13.
B. The BOP's Administrative Remedy Program
The BOP's Administrative Remedy Program establishes a four-step process for resolution of an inmate's grievances. First, an inmate " present[s] an issue of concern informally to staff, and staff . . . attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy." 28 C.F.R. § 542.13(a). " At FCI Forrest City -- Low [where the plaintiff was incarcerated at all times relevant to the complaint], inmates first attempt informal resolution by presenting grievances verbally to the staff member having responsibility for the area or program involved." Norris Decl. ¶ 25; see id., Attach. 9 (Institution Supplement, Number FOX 1330.17-07 (Sept. 12, 2012)) at 3-4.
If the matter is not resolved informally, " the inmate is issued a Documentation of Informal Resolution Attempt form," and if the inmate's " Unit Manager has not completed a review of the informal resolution documentation [within two business days], the inmate is issued a Request for Administrative Remedy form ('BP-9') upon request," Norris Decl. ¶ 26; see 28 C.F.R. § 542.14(a), for submission to the Warden of the institution where he is incarcerated, see 28 C.F.R. § 542.14(d). If the inmate is not satisfied with the Warden's response, he may file " a Regional Administrative Remedy Appeal ('BP-10') with the appropriate BOP Regional Office." Norris Decl. ¶ 27; see 28 C.F.R. § 542.15(a). " If the Regional Office denies the [inmate's request], the inmate can appeal the decision by filing a Central Office Administrative Remedy Appeal ('BP-11') to the Office of the General Counsel" at BOP's Central Office. Norris Decl. ¶ 27; see 28 C.F.R. § 542.15(b). " Appeal to the General Counsel is the final administrative appeal." Norris Decl. ¶ 27.
The requirement that an inmate submit his initial request at the institutional level has exceptions. For example, " [i]f the inmate reasonably believes the issue is sensitive and [his] safety or well-being would be placed in danger" should staff at the institution become aware of his issue, " the inmate may submit [his request] directly to the appropriate Regional Director." 28 C.F.R. § 542.14(d)(1); see Norris Decl., Attach. 9 at 3. Relevant to this case is an exception allowing a " formal administrative remedy request regarding [an] initial decision that did not originate with the Warden, or his/her staff, [to] be initially filed with the [BOP] office which made the original decision, and [to] appeal [that determination] directly to the General Counsel." 28 C.F.R. § 542.14(d)(5).
C. The Plaintiff's Administrative Remedy Requests
The plaintiff repeatedly has challenged the CIM assignment over the past four years. In 2011, he submitted an Inmate Request to Staff asking that, in light of his acquittal on the attempted murder counts, the " CIM [Threats to] Government Officials . . . be removed from [his] file." Pl.'s Mem. at 2; see id., Exh. 4 (Inmate Request to Staff dated December 14, 2011). His Unit Team denied the request. On review of the CIM assignment, staff determined that " the assignment [was] correct and [would] remain" in effect. Id., Exh. 4 (Disposition of Inmate Request to Staff dated January 19, 2012).
On February 3, 2012, the plaintiff again requested removal of the CIM assignment. Id. at 3; see id., Exh. 5 (Documentation of Informal Resolution Attempt dated February 3, 2012). This request was also denied. Id., Exh. 6 (Response to Informal Resolution Attempt). The plaintiff was no more successful with a third informal request to staff in July 2012, when staff again advised the plaintiff that the CIM assignment would remain in effect. Norris Decl. ¶ 30; see id., Attach. 13 (Documentation of Informal Resolution Attempt dated July 23, 2012 and Unit Manager's Response).
" Following the plaintiff's program review in May 2012," the Warden submitted a request to BOP's South Central Regional Office inquiring about " the declassification of the Threat to Government Official on the plaintiff." Norris Decl. ¶ 29; see id., Attach. 11 (Memorandum to G. Maldonado, Regional Director, South Central Region, BOP, from T.C. Outlaw, Warden, Federal Correctional Complex -- Low, Forrest City, AR, dated May 9, 2012). The CIM Coordinator for the South Central Regional Office, Def.'s Mem., Declaration of Shannon Robbins, ECF No. 10-6 (" Robbins Decl." ) ¶ 1, " reviewed the warden's ...