Rosario v. Boyer et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Ivan Rosario
v. Civil No. 23-cv-258-JL-AJ
S. Boyer, et al.1
REPORT AND RECOMMENDATION
Plaintiff Ivan Rosario filed a Complaint (Doc. No. 1)
alleging that his federal constitutional rights were violated
while he was incarcerated at the Federal Correctional
Institution in Gilmer, West Virginia (“FCI Gilmer”) in May
through July 2021, and while he was incarcerated at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI Berlin”)
during and after September 2021. The Complaint is before the
undersigned Magistrate Judge for preliminary review pursuant to
28 U.S.C. § 1915A(a) and LR 4.3(d)(1).
Preliminary Review Standard
In conducting preliminary review under 28 U.S.C. § 1915A(a)
and LR 4.3(d)(1), the Court takes as true the facts asserted in
the Complaint, and inferences reasonably drawn from those facts,
1 Rosario names the following individuals as defendants to
this matter: S. Boyer, J. Jimenez, Lt. Adkins (whose first name
is unknown (“FNU”)), John Doe #1, Lt. FNU Hensley, and Lt. FNU
Tawes. The defendants are sued in their individual and official
capacities.
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strips away the legal conclusions, and considers whether the
complaint states a claim that is plausible on its face.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In
determining whether a pro se complaint states a claim, the court
construes it liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). The Court may dismiss claims if the court
lacks subject matter jurisdiction, a defendant is immune from
the relief sought, the complaint fails to state a claim upon
which relief might be granted, or the action is frivolous or
malicious. See 28 U.S.C. § 1915(e)(2). Applying this standard,
the Court relates the facts relevant to the claims in this
action as set forth by in the Complaint.
Background
I. FCI Gilmer May–July 2021FCI Gilmer May – July 2021
A. Failure to Adhere to Regulations
In 2021, when Mr. Rosario was serving his sentence at FCI
Gilmer, he was placed in that facility’s Secure Housing Unit
(“SHU”) due to a disciplinary charge which had been lodged
against him. Mr. Rosario was held in SHU for several months
while the disciplinary charge was pending.
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Mr. Rosario states that while he was in SHU, FCI Gilmer Lt.
Adkins, whose first name is not known (“FNU”), failed to adhere
to certain federal regulations governing staff responsibilities
to SHU prisoners. Specifically, Mr. Rosario alleges that Lt.
Adkins failed to follow the directive in 28 C.F.R. § 541.26(c)2
that requires staff members to conduct reviews of a prisoner’s
SHU placement in the presence of the prisoner, and the directive
in 28 C.F.R. § 541.32(b)3 that requires a prisoner be evaluated
in person by a mental health provider every thirty days while
housed in SHU.
B. Denial of Access to Administrative Remedy Forms, Law
Library, and Legal Materials
On four occasions in May and June 2021, while in the FCI
Gilmer SHU, Mr. Rosario asked his Case Counselor to provide him
with administrative remedy forms, access to the law library, and
access to his legal materials. Mr. Rosario asserts that during
the times relevant to this lawsuit, was engaged in two appeals
2 28 C.F.R. § 541.26(c) states that “[a]fter every 30
calendar days of continuous placement in either administrative
detention or disciplinary segregation status, the [Segregation
Review Official] will formally review [the prisoner’s] status at
a hearing [the prisoner] can attend.”
3 28 C.F.R. § 541.32(b) states, in pertinent part, that
“[a]fter every 30 calendar days of continuous placement in
either administrative detention or disciplinary segregation
status, mental health staff will examine [the prisoner],
including a personal interview.”
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of his criminal conviction, and that he was, at times,
representing himself in those appeals.4 Mr. Rosario’s case
counselor refused all of those requests.
Mr. Rosario made the same requests of Lt. Adkins – for
administrative remedy forms, access to the law library, and
access to his legal materials – who also refused to grant any of
those requests. Lt. Adkins also threatened to delay Mr.
Rosario’s designation to a new facility and to make his stay in
SHU “horrible,” in response to Mr. Rosario’s efforts to seek
access to the law library and legal materials by filing actions
in federal court. Doc. No. 1, at 4.
Similarly, on three occasions in June and July 2021, FCI
Gilmer SHU Officer Perkins denied Mr. Rosario’s requests for
administrative remedy forms and access to the law library. Also
in July 2021, Mr. Rosario asserts that he asked the FCI Gilmer
Warden for access to administrative remedy forms and access to
the law library, but the Warden ignored his requests.
4 Mr. Rosario references two criminal appeals which were
pending in the Second Circuit Court of Appeals during the events
underlying this lawsuit: United States v. Rosario, No. 19-cr-
2399 (2d Cir.), and United States v. Rosario, No. 21-cr-680 (2d
Cir.).
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C. Disciplinary Proceedings
Mr. Rosario was held in the FCI Gilmer SHU in connection
with a charged disciplinary offense. Mr. Rosario alleges that
he was denied certain due process protections during those
proceedings, including Disciplinary Hearing Officer (“DHO”) J.
Jimenez’s denial of Mr. Rosario’s requested witnesses, the
failure of FCI Gilmer officials to preserve video of the
incident underlying the disciplinary charge upon Mr. Rosario’s
request, FCI Gilmer Officer S. Boyer’s submission of “fraudulent
statements” in evidence at that hearing, DHO Jiminez’s reliance
solely on Officer Boyer’s statement, and the failure to provide
Mr. Rosario with DHO Jimenez’s Report and other documents he
needed to file an appeal of his disciplinary finding and
sanctions.
Mr. Rosario further asserts that DHO Jimenez imposed
unreasonably harsh sanctions on Mr. Rosario after finding him
guilty, including a loss of good time. After Mr. Rosario filed
a 28 U.S.C. § 2241 petition in this Court challenging that
disciplinary finding, the Federal Bureau of Prisons (“BOP”)
expunged Mr. Rosario’s disciplinary offense and restored his
good time. Mr. Rosario states that the disciplinary violation
was not expunged until after he had already served all of the
sanctions the DHO imposed (other than the revocation of good
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time), including: time in SHU; loss of commissary; and loss of
all email and telephone communications, including with his
family, for one year.
II. Berlin – Since September 2021
A. Access to Legal Materials and DHO Report
Mr. Rosario was transferred out of FCI Gilmer in July 2021
and arrived at FCI Berlin to continue serving his sentence in
September 2021. Mr. Rosario states that he was denied access to
all of his legal materials during the transfer. Also during his
transfer, Mr. Rosario requested and was denied administrative
remedy forms.
When he arrived at FCI Berlin, Mr. Rosario was again placed
in SHU. Mr. Rosario requested his legal materials but they were
not provided to him at that time. Mr. Rosario states that none
of his “legal research and court notices” were sent from FCI
Gilmer to FCI Berlin. Mr. Rosario also requested a copy of the
DHO Report from his FCI Gilmer disciplinary proceedings. In
October 2021, an FCI Berlin staff member told him that no DHO
Report and had arrived at that facility.
Mr. Rosario states that while in the FCI Berlin SHU, he was
denied correspondence from the Second Circuit Court of Appeals
regarding his appeals pending there. Mr. Rosario states that he
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had to represent himself for some period of time in one or both
of those appeals. Mr. Rosario asserts that he was prevented
from filing nonfrivolous claims on his own behalf in the
appellate court during that time because he was denied access to
his legal materials. Specifically, Mr. Rosario states that
while he was in the FCI Berlin SHU, he submitted multiple
requests to Lt. FNU Hensley and Lt. FNU Tawes for access to the
law library and his legal material. He contends that Lt.
Hensley and Lt. Tawes ignored all of his requests. He states
that other FCI Berlin officials also denied multiple requests he
made for administrative remedy forms.
B. Failure to Follow Regulations
While housed in the FCI Berlin SHU, Mr. Rosario alleges he
was denied the mandatory 30-day reviews required by 28 C.F.R. §
541.26(c). As a result, and because he was denied
administrative remedy forms, Mr. Rosario claims he was denied
the ability to complain about the conditions of his confinement.
Mr. Rosario does not state what conditions he sought to
challenge.
III. Relief Requested
As to each of his claims, Mr. Rosario asks the Court to
issue a declaratory judgment stating that his constitutional
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rights were violated and to enjoin the defendants from further
violating his constitutional rights. Mr. Rosario also asks the
Court for any other “relief that is proper under the law.” Doc.
No. 1, at 7, 8, 9.
Discussion
I. Claims Arising at FCI Gilmer – Improper Venue
Under federal venue law, a civil action may only be brought
in “a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is
located,” or in “a judicial district in which a substantial part
of the events or omissions giving rise to the claim occurred, or
a substantial part of property that is the subject of the action
is situated.” 28 U.S.C. § 1391(b)(1)-(2). FCI Gilmer is
located in the Northern District of West Virginia. Mr. Rosario
has not made any allegation demonstrating a connection between
the District of New Hampshire and the FCI Gilmer defendants, who
are all located in West Virginia, or the conduct of those
defendants which occurred at FCI Gilmer, to allow the Court to
find that venue is proper in the District of New Hampshire.
Under 28 U.S.C. §§ 1406(a), “[t]he district court of a
district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest
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of justice, transfer such case to any district or division in
which it could have been brought.” Here, it appears that Mr.
Rosario’s claims against the FCI Gilmer defendants would be
subject to dismissal in the Northern District of West Virginia
for the same reasons, discussed below, that this Court
recommends dismissing the claims against the FCI Berlin
defendants, and therefore, transfer of this matter to the
Northern District of West Virginia would not “be in the interest
of justice.” Id. Accordingly, the District Judge should
dismiss the claims against the FCI Gilmer defendants for
improper venue, without prejudice to Mr. Rosario’s ability to
bring those claims in a suit filed in the Northern District of
West Virginia.
II. Claims Arising at FCI Berlin
A. Injunctive Relief
Mr. Rosario asks this Court to enjoin the FCI Berlin
defendants, Lt. Hensley and Lt. Hawes, from engaging in further
violations of his rights. Since filing this action, Mr. Rosario
has been transferred to the Federal Correctional Institution in
Danbury, Connecticut (“FCI Danbury”).
There is no injunctive relief the Court could grant to the
plaintiff relating to a claim against the defendants named here,
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as his request for such relief was mooted by his transfer out of
FCI Berlin, where Lts. Hensley and Tawes are located. See Ford
v. Bender, 768 F.3d 15, 29 (1st Cir. 2014) (where injunctive
relief is sought, a “challenge to prison conditions or policies
is generally rendered moot by [a prisoner’s] transfer or
release” as he no longer has a “‘legally cognizable interest in
a judicial decision on the merits of his claim’” for injunctive
relief (citation omitted)). Mr. Rosario has not asserted any
facts which indicate that he is likely to be returned to FCI
Berlin. Further, he has not asserted facts to indicate that, if
he were to be returned to FCI Berlin, he would be subject to the
same conditions which he alleges underlie his claims here.
Accordingly, the District Judge should deny his claims for
injunctive relief as moot.
B. Declaratory Relief
In addition to his request for injunctive relief, Mr.
Rosario asks the Court to issue declaratory relief by finding
and declaring that, in taking the actions which Mr. Rosario
alleges underlie his claims against Lts. Hensley and Tawes,
those defendants violated Mr. Rosario’s rights under the United
States Constitution. In general, “issuance of a declaratory
judgment deeming past conduct illegal is . . . not permissible
as it would be merely advisory.” Am. Civ. Liberties Union of
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Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 53 (1st Cir.
2013). “The Supreme Court has admonished that federal courts
‘are not in the business of pronouncing that past actions which
have no demonstrable continuing effect were right or wrong.’”
Id. (quoting Spencer v. Kemna, 523 U.S. 1, 18 (1998)). The
First Circuit has recently held that “this general rule should
be relaxed only if ‘there is a substantial controversy of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.’” Corrigan v. Bos. Univ., 98 F.4th 346,
350-51 (1st Cir. 2024) (citations omitted). Absent any evidence
or allegation to indicate that there remains such a controversy
after Mr. Rosario’s transfer out of FCI Berlin, a declaratory
judgment is not proper here, and the District Judge should
dismiss Mr. Rosario’s claims for declaratory judgment on that
basis.5
5 Mr. Rosario did not seek damages in his complaint. The
Court notes, nevertheless, that such relief would likely be
unavailable under recent United States Supreme Court decisions
significantly limiting the availability of damages claims
against federal officials for constitutional violations. Such
claims arise under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). “[T]he [Supreme]
Court has made clear that expanding the Bivens remedy is now a
‘disfavored’ judicial activity. This is in accord with the
Court’s observation that it has ‘consistently refused to extend
Bivens to any new context or new category of defendants.’”
Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (citations omitted).
The Supreme Court has never recognized damages claims under
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Conclusion
For the foregoing reasons, the District Judge should
dismiss the complaint in its entirety, without prejudice to Mr.
Rosario’s ability to bring claims against the FCI Gilmer
defendants in a court of competent jurisdiction. Any objections
to this Report and Recommendation must be filed within fourteen
days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2).
The objection period may be extended upon motion. Only those
issues raised in the written objections “‘are subject to review
in the district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016) (citations omitted).
SO ORDERED.
_______________________
Andrea K. Johnstone
United States Magistrate Judge
November 21, 2024
cc: Ivan Rosario, pro se
Bivens for the First and Fifth Amendment claims Mr. Rosario
asserts in this action. See Egbert v. Boule, 596 U.S. 482, 498-
99 (2022) (Supreme Court has “‘never held that Bivens extends to
First Amendment claims,’” including retaliation claims); Jordan
v. Barves, No. 24-2030, 2024 U.S. App. LEXIS 27059, at *4, 2024
WL 4579248, at *2 (3d Cir. Oct. 25, 2024) (Supreme Court has
never “recognized a Bivens remedy for an alleged due process
violation in [prison] disciplinary proceedings, or for an
alleged First or Fifth Amendment violation of the right to
access the courts”); Islaam v. Kubicki, 838 F. App’x 657, 661
(3d Cir. 2020) (per curiam) (Supreme Court has never recognized
a damages remedy under Bivens for violations of BOP policies).
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