United States District Court, District of Columbia
A. HOWELL United States District Judge.
matter is before the Court on the defendants' Motion to
Dismiss or, in the Alternative for Summary Judgment, ECF No.
49. For the reasons discussed below, the motion will be
plaintiff was returned to the custody of the Federal Bureau
of Prisons ("BOP") on January 17, 2007 after his
parole was revoked. Defs.' Statement of Material Facts as
to which There Is No Genuine Dispute, ECF No. 49
("Defs.' SOMF") ¶ 4. From July 14, 2010
through February 9, 2015, he was incarcerated at the United
States Penitentiary in Lewisburg, Pennsylvania ("USP
Lewisburg"). Id. He was transferred out of USP
Lewisburg on February 9, 2015 and arrived at the
Administrative Maximum Facility in Florence, Colorado
("ADX Florence") on March 2, 2015.
Id.¶ 5. The claims arising out of these
consolidated cases stem from the plaintiff's custody at
these two institutions, USP Lewisburg and ADX Florence.
plaintiffs first claim is brought against Susan Stover,
formerly his Unit Manager at USP Lewisburg, in her individual
capacity. See Compl. at 4, 6 (page numbers
designated by the plaintiff). The plaintiff alleges that, on or
about January 30, 2014, he sent Stover a written marriage
Ms. Stover, this is a proposal. But, it is not a Sexual
Proposal. This is a Marriage Proposal. This Proposal is being
sent to you under the First Amendment of the Constitution
(Freedom of Speech, Choice and Association). Under Freedom of
Speech, I Love you very much. Under Freedom of Choice, You
are the woman I choose to marry. So, I request that you marry
Compl. at 6-7. The proposal was presented as an inmate
request to staff, or "cop-out." See Mem.
of P. & A. in Support of Defs.' Mot. to Dismiss or,
in the Alternative, for Summ. J. ("Defs.'
Mem.") at 24. Stover did not respond to the plaintiff
with a simple "yes or no." Compl. at 7. Rather, she
issued an Incident Report, see Defs.' Mem., Ex.
4 (Incident Report Number 2543699), charging the plaintiff
"with a Code 206, Making a Sexual Proposal, "
Compl. at 7; see Defs.' Mem., Ex. 4 (Discipline
Hearing Officer Report regarding Incident Report Number
2543699) at 1.
plaintiff chose not to attend a hearing before a Disciplinary
Hearing Officer ("DHO"), who ultimately found that
"the greater weight of the evidence" supported the
conclusion that the plaintiff "violated code 298/206,
Interfering with staff in the performance of their duties,
Most like Making a sexual proposal[.]" Defs.' Mem.,
Ex. 4 (Discipline Hearing Officer Report regarding Incident
Report Number 2543699) at 3. The DHO imposed the following
Forfeit Statutory Good Time: 60 days
Disciplinary Segregation: 90 days
Loss of Commissary Privilege: 16 months
Loss of Visiting Privilege: 16 months
Loss of Telephone Privilege: 16 months
Loss of Mattress: 13 months
Impound Personal Property (except legal material): 9 months
Monetary Fine: $27
Id., Ex. 4 (Discipline Hearing Officer Report
regarding Incident Report Number 2543699) at 4.
to the plaintiff, he has "a constitutional right to
marry the woman of [his] choice[, a]s long as the woman ...
is not an enemy of this Country or a member of an enemy
Organization." Compl. at 8. He deems Stover's
"writing and filing that malicious and sadistic Incident
Report" a violation of his rights to "Freedom of
Speech, Freedom of Choice, and Freedom of Association."
Id. For these alleged violations of rights protected
under the First Amendment to the United States Constitution,
the plaintiff "move[s] this Court to find . . . Stover
guilty as charged." Id.
the plaintiff sues David R. Wilson, USP Lewisburg's
Associate Warden of Programs, in his individual capacity for
alleged violations of his rights protected under the First
and Fifth Amendments to the United States Constitution.
Id. at 9. This claim arises from the plaintiff's
transfer from USP Lewisburg to ADX Florence.
plaintiff began a Special Management Unit (SMU) Program at
the Federal Correctional Institution in Oakdale, Louisiana in
August 2009, and continued his participation in the SMU
Program after his transfer to USP Lewisburg. See
Defs.' Mem., Ex. 5 (ADX General Population Hearing
Administrator's Report) at 1. "Since designation to
the SMU Program, [the plaintiff] incurred an additional 136
disciplinary actions, including 27 disciplinary actions for
Code 206, Making Sexual Proposals, as well as multiple
instances of Code 203, Threatening Bodily Harm, Code 224,
Assault, [and] Code 104, Possession of a Weapon, " among
other infractions. Id., Ex. 5 (ADX General
Population Hearing Administrator's Report) at 1. Based on
the staffs "collective perception . . . that [the
plaintiff's] failure to adequately progress in the SMU
Program [was] based on his disruptive conduct and total
disregard for [BOP] rules and regulations[, ]" the
Warden proposed that the plaintiff be transferred to the
General Population Unit at ADX Florence. Id., Ex. 5
(Memorandum to Jose Santana, Chief, Designation and Sentence
Computation Center, from J.E. Thomas, Warden, USP Lewisburg,
dated March 20, 2004) at 1.
July 3, 2014, [the plaintiff] was given the Notice of Hearing
on Referral for Transfer to the General Population at the ADX
in Florence, Colorado, which outlined the basis for the
placement recommendation." Defs.' SOMF ¶ 19. A
hearing on the transfer took place on November 7, 2014
"at which [the plaintiff] was present and during which
he provided a statement." Id. ¶ 20. It was
determined that the plaintiff warranted placement at ADX
Florence. See Defs.' Mem., Ex. 5 (ADX General
Population Placement Decision).
plaintiff appealed the transfer on January 28, 2015.
See Compl. at 9; Defs.' SOMF ¶ 22.
According to the plaintiff, the appeal should have delayed
his transfer for 30 days. Compl. at 9. However, Associate
Warden Wilson allegedly caused the plaintiff to be
transferred promptly in response to the lawsuit the plaintiff
had filed against Susan Stover. Id. at 9-10. The
plaintiff's appeal was denied on April 17, 2015, weeks
after his arrival at ADX Florence on March 2, 2015.
Defs.' SOMF ¶ 23
anticipation of his transfer, the plaintiff alleges, all of
his property - including legal papers related to the instant
civil action - was removed from his cell; none of his
property has been returned to him. Compl. at 10. The
plaintiff considers the loss of his legal papers "an Act
of Denial of Access to the Court." Id. Further,
because Wilson did not allow the plaintiff "to litigate
[his] A.D.X. Transfer Appeal[, ]" he claims that Wilson
"intentionally denied and interferred [sic] with [the
plaintiffs] Fifth Amendment Right to Due Process of
Law." Id. at 11. The plaintiff demands
injunctive relief, that is, transfer back to USP Lewisburg,
and "monetary relief of: $175, 000.00 from . . . Wilson
... in his individual capacity." Id.
Claims Three and Four
April 9, 2015, at approximately 11:00 a.m., [the plaintiff]
had a verbal confrontation with Defendant VanSickle, "
Defs.' SOMF ¶ 24, a Senior Officer Specialist at ADX
Florence, see Defs.' Mem., Ex. 6 (Incident
Report Number 2703502) at 1. The incident occurred at
approximately 11 a.m., after which "VanSickle issued an
incident report, " and a copy of the report "was
provided to [the plaintiff] on April 10, 2015, at 1
p.m." Defs.' SOMF ¶ 25; see Defs.'
Mem., Ex. 6 (Incident Report Number 2703502) at 2. The
plaintiff was charged with Code 203, "Threatening
another with bodily harm or any other offense."
Defs.' Mem., Ex. 6 (Incident Report Number 2703502) at 1.
to Program Statement 5270.09, Inmate Discipline
Program (July 8, 2011), the plaintiff alleges that
"[s]taff who has reason to believe that an inmate
violated the regulations of the B.O.P. 'must' write
an incident report detailing the inmate's involvement in
the incident, " which is delivered to the Operations
Lieutenant who assigns a staff member to deliver a copy of
the incident report to the inmate. Compl. at 12. According to
the plaintiff, the Report was given to Operations Lieutenant
Thompson in a timely manner, yet the plaintiff "was not
served with the Report until 1:00 p.m. on [April 10, 2015],
" id. at 13, roughly two ...