Widi, Jr. v. Federal Bureau of Prisons et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David J. Widi, Jr.
v. Civil No. 14-cv-160-SM
Federal Bureau of Prisons et al.1
REPORT AND RECOMMENDATION ON AMENDED COMPLAINT
1The parties who remain in this case and/or who have been
listed as defendants in the Amended Complaint are the following:
the United States; the Federal Bureau of Prisons (“BOP”); the
BOP Director; R. Ament; H. Andy; M. Apple; Mark Argir; Lyle
Baldridge; Cory Balinas; B. Beegle; Jamie Belanger; Kathy
Bilodeau; Bryan Birkholtz; Andre Bouchard; D. Boynton; R. Brown;
Sidney Bruce; J. Buescher; Dillon Bunnell; Chris Casner; J.
Chappell; Richard Cone; B. Cooper; Emily Crimaldi; Kristen
Croteau; Amanda Curren; Patrick Deveney; Farnon Dix; John
Domitrovich; Ryan Donahue; Mark Dzubak; FNU Early (whose first
name is unknown); Shawn Felix; A. Ferron; N. Flynn; Thomas
Folnsbee; A. Galletta; James Salvatore Gambone; Patrick Gerhart;
Angelo Giamusso; Jeffrey Gluc; Michelle Gonyea; Jerrod Grimes;
FNU Hawes; N. Hayden; Eric Hernandez; Jeremy Hess; McDaniel
Holloway; Charles Hubbard; Donald Hudson; Joshua Hulme; James
Kelley; Jason Kelsey; William C. Knight; FNU Kuznecow; S.
LaBrenz; Christine Larin; J. Lee; Kans Booz Lewis; Matthew Lock;
Brad Malcolm; Yancey Matteau; Stephen McConnell; Lirissia McCoy;
Wanda Mullins; Derek Myers; Charles Napier; Thomas J. Noonan;
Joseph L. Norwood; S. Paritsky; Jimmie D. Purselley, III; Samuel
Queen; E. Quinones; Kevin Ramsay; David Salamy; Charles Samuels;
Jose Santana; Brent Shallow; Wesley Shea; Richard Smith; Shane
Smith; Oliver Spradlin; Dan Sullivan; Esker Lee Tatum, Jr.;
Scott Tawes; Travis Taylor; J. Tempke; James Thagouras;
Christopher Thiel; Christopher Tobias; M. Vincent; Derek
Waughen; Mark Williams; Jared Wydra; and a number of John Does.
This “Report and Recommendation on Amended Complaint” recommends
that the court drop the following defendants from this case:
the BOP, the BOP Director, Cooper, Early, Gluc, Gonyea, Hawes,
Hudson, Lewis, Matteau, McCoy, “FNU McGurn,” Salamy, Samuels,
Brian Smith, and the John Doe defendants.
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Before the court in this case is plaintiff David J. Widi,
Jr.’s “Amended Complaint” (Doc. No. 226). The Amended Complaint
is before this court for preliminary review, pursuant to LR
4.3(d)(1) and 28 U.S.C. §§ 1915(e)(2) and 1915A.
Standard
The magistrate judge conducts a preliminary review of
complaints and amendments to complaints, like Widi’s, which are
filed by in forma pauperis inmates. The magistrate judge may
recommend to the district judge that one or more claims be
dismissed if, among other things, the court lacks jurisdiction,
a defendant is immune from the relief sought, or the complaint
fails to state a claim upon which relief may be granted. See 28
U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2); LR 4.3(d)(1). In
conducting its preliminary review, the court construes pro se
complaints liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). The complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief.’”
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted).
Background
This case resulted from the consolidation and merger of two
related cases filed by Widi in this District. Widi’s claims
relate to incidents that occurred in 2014 while Widi was an
inmate at Federal Correctional Institutions, first in New York
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(“FCI Ray Brook”) and then in Berlin, New Hampshire (“FCI
Berlin”). Widi’s claims also relate to Freedom of Information
Act (“FOIA”) requests he submitted to the Federal Bureau of
Prisons (“BOP”).
In February 2014, Widi filed this action in state court.
The federal defendants timely removed the case to this court.
The preliminary review of the Second Amended Complaint (Doc. No.
105) in this action, resulted in: the severance and transfer of
all claims asserted against the FCI Ray Brook defendants (Donald
Hudson, David Salamy, Jeffrey Gluc, Yancey Matteau, and Michelle
Gonyea), and the filing of a new case in the Northern District
of New York, see Widi v. Hudson, No. 9:16-cv-01042-FJS-DJS
(N.D.N.Y.) (“Hudson”); the dismissal of all claims against two
Public Health Service officers named as defendants (Kans Booz
Lewis and Lirissia McCoy); the dismissal of a number of
unexhausted tort claims against the United States arising under
the Federal Tort Claims Act (“FTCA”) and unexhausted federal
constitutional claims asserted against individuals under Bivens
v. Six Unknown Fed. Narc. Agents, 403 U.S. 388 (1971); the
dismissal of all claims Widi sought to file under 42 U.S.C.
§ 1983 and state law; and the dismissal of certain other claims
and dropping of a number of other defendants, as specified in
the August 19, 2016 Order (Doc. No. 161), completing the
preliminary review of the Second Amended Complaint (Doc. No.
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105).
Widi filed his second, related case, Widi v. United States,
No. 16-cv-445-JL (D.N.H.) (“Widi II”), on September 30, 2016,
after the court in this case (hereinafter “Widi I”) had
completed its preliminary review of the Second Amended Complaint
(Doc. No. 105). Before any defendants were served in Widi II,
in January 2017, Widi filed the Amended Complaint in that case,
and simultaneously moved for leave to file a Third Amended
Complaint (Doc. No. 206-1) (“TAC”) in Widi I. Widi II was
consolidated into Widi I for all purposes by this court’s July
5, 2017 Order (Doc. No. 224).
The TAC and the Amended Complaint are the same document.2
The Amended Complaint was redocketed in Widi I upon
consolidation of the cases, and that pleading (Doc. No. 226) is
now before this court for preliminary review. A separate
“Report and Recommendation on Third Amended Complaint,” issued
this date, recommends that the district judge deny Widi’s motion
for leave to file the TAC (Doc. No. 206), as it is identical to
the Amended Complaint, which has already been filed.
2The court’s copy of the Amended Complaint (Doc. No. 226)
was missing pages 78-79 and paragraphs 482-98, as numbered by
Widi, when it was docketed in Widi II. The omission appears to
have been inadvertent. This court reviewed the pertinent pages
and paragraphs of the TAC in its preliminary review of the
Amended Complaint here, and deems those TAC pages and paragraphs
(Doc. No. 206-1, at 78-79) to be part of the Amended Complaint.
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Claims
The claims in the Amended Complaint (and in the TAC), are
identified and renumbered by this court, as follows3:
1. In retaliation for Widi’s filing grievances at FCI Ray
Brook, in violation of Widi’s First Amendment rights, and
in a manner actionable under Bivens, FCI Ray Brook
defendants, Gluc, Matteau, Salamy, Gonyea, and Hudson, in
January 2014:
a. miscalculated Widi’s custody score to keep him at
a medium security level, and
b. effected Widi’s transfer to FCI Berlin, a
facility known for its “deplorable conditions.”
2. In retaliation for Widi’s filing of grievances at FCI
Ray Brook, FCI Berlin, and/or this lawsuit, in a manner
actionable under Bivens:
a. defendants Mullens, Tatum, and Sullivan refused
to correct Widi’s criminal history/custody level
calculation, in order to keep Widi classified as
medium security;
b. defendants Mullens, Sullivan, and Tatum conspired
with FCI Ray Brook defendants to keep Widi at FCI
Berlin and to keep his custody score elevated; and
c. defendants Apple, Ament, Mullens, Galletta,
Birkholtz, and Tatum miscalculated Widi’s custody
classification score; and
d. defendants Apple, Ament, Mullens, Galletta,
Williams, Birkholtz, Tatum, Norwood, and Santana used
false incident reports to inappropriately apply a
higher security management variable to Widi.
3The list of claims set forth in this R&R is intended to
encompass all of the claims Widi asserted in the Amended
Complaint, although this court’s arrangement, identification,
and numbering of claims here differs from the manner in which
the claims were arranged, identified, and numbered in the
Amended Complaint.
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3. In a manner actionable under Bivens:
a. defendant Mullens assigned Widi a new job and
then did not provide him with notice of the
assignment, in retaliation for Widi’s First Amendment
activities;
b. defendant Boynton initiated disciplinary
proceedings against Widi through incident report No.
2548416, for refusing work, in retaliation for Widi’s
First Amendment activities;
c. defendant Domitrovich placed Widi in SHU pending
disposition of incident report No. 2548416, charging
Widi with refusing work, in retaliation for Widi’s
First Amendment activities;
d. with respect to incident reports that were either
false or included over-charging (specifically, thirty-
nine reports detailing more than fifty infractions,
thirty-five of which were expunged, and fifteen of
which were found to have been committed by Widi),
which caused Widi’s classification score to be
artificially inflated:
i. defendants Bilodeau, Boynton, Bruce,
Buescher, Chappell, Cone, Curren, Dzubak, Ferron,
Flynn, Folnsbee, Gambone, Hayden, Hess, Hulme,
Knight, LaBrenz, Larin, Lee, Malcolm, McConnell,
Paritsky, Purselley, Quinones, and Taylor wrote
up such reports, in retaliation for Widi’s First
Amendment activities; and
ii. defendants Hess, Hayden, Myers, and Wydra
investigated and rubber-stamped those reports, in
retaliation for Widi’s First Amendment
activities;
e. defendants Hayden and Hess kept Widi in SHU for
an excessive amount of time, almost ten months, in
retaliation for Widi’s First Amendment activities;
f. defendants listed in Claims 4(a)-(h) subjected
Widi to uses of force and restraints, on February 21,
February 22, February 27, April 24, July 18, July 19,
August 20, and September 22, 2014, in retaliation for
Widi’s First Amendment activities;
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g. defendants Knight, Thiel, Hulme, Malcolm, Dzubak,
Kuznecow, Hayden, and Tobias denied Widi his medically
necessary mattress, in retaliation for Widi’s First
Amendment activities;
h. as described more fully in Claim 8(a)-(e),
defendants Bilodeau, Larin, Croteau, Holloway, Lewis
and McCoy did not provide Widi with adequate medical
care, in retaliation for Widi’s First Amendment
activities;
i. defendant Hayden, on April 2, 2014, denied Widi
access to electronic law library printouts, in
retaliation for Widi’s First Amendment activities;
j. defendants Brown, Hess, Knight, McConnell,
Napier, Paritsky, and Taylor denied Widi food trays at
three meals on September 29 (breakfast, lunch, and
dinner) and one meal on September 30 (breakfast), in
retaliation for Widi’s First Amendment activities;
k. defendants Brown, Cooper, Crimaldi, Early, Hawes,
Hess, Hulme, McConnell, Paritsky, and Taylor denied
Widi one hour of out-of-cell time, in retaliation for
Widi’s First Amendment activities, on each of the
following days: August 26, September 10, September 11,
September 16, September 17, September 21, September
25, September 29, and September 30;
l. the following immediate and upper level
supervisory defendants approved or authorized the
adverse actions described in Claims 3(a)-(k):
i. Mullens, Galletta, Williams, Birkholtz,
Tatum, and Norwood; and
ii. BOP Director Charles Samuels;
m. defendants Dzubak and Brown willfully deprived
Widi of items of his property, as described in Claim
7(c), in retaliation for Widi’s First Amendment
activities.
4. Defendants subjected Widi to excessive force and/or
misapplied restraints in 2014, maliciously or sadistically,
in violation of Widi’s rights under the Eighth Amendment,
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in a manner actionable under Bivens, in connection with:
a. one incident on February 21, as to the conduct of
defendants Argir, Domitrovich, Felix, Grimes, Lewis,
Malcolm, R. Smith, and Tawes, and the authorizations
provided by Galletta, Holloway, McCoy, Tatum, and
Williams, after Widi refused a medical assessment;
b. two incidents on February 22 –
i. first, an “immediate use of force,” after
Widi refused a medical assessment, as to the
conduct of defendants Dzubak, Larin, and R.
Smith, and the authorizations provided by
Galletta, Holloway, McCoy, Tatum, and Williams;
and
ii. second, a “calculated use of force,” after
Widi refused a medical assessment, as to the
conduct of defendants Bouchard, Bunnell, Deveney,
Hess, Shea, S. Smith, and Taylor, at Larin’s
request, and pursuant to authorizations provided
by Galletta, Holloway, McCoy, Tatum, and
Williams;
c. two incidents on February 27 –
i. first, an “immediate use of force” after
Widi refused a cell assignment, as to the conduct
of defendants Crimaldi, Dzubak, and Hubbard; and
ii. second, a “calculated use of force,” after
Widi was falsely accused of assault by defendants
Dzubak, Crimaldi, and Hubbard,
A. as to the conduct of defendants
Bouchard, Donahue, McConnell, Myers, Tobias,
and Waughen, pursuant to authorizations by
Galletta, Tatum, and Williams, and
B. as to the failure of defendants Andy,
Vincent, Myers, Galletta, and Tatum to
remove Widi’s restraints;
d. one incident on April 24, after Widi refused a
cell assignment,
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i. as to the conduct of defendants Argir,
Casner, Dix, Galletta, Giamusso, Hayden, Hess,
Ramsay, Shea, R. Smith, and Wydra, pursuant to
authorizations by Galletta, McCoy, Tatum, and
Williams; and
ii. as to the failure of defendants Hayden,
Vincent, Galletta, and Tatum to remove Widi’s
restraints;
e. one incident on July 18, after Widi refused a
cell assignment, as to the conduct of defendant Bruce,
Curren, and Taylor;
f. three incidents on July 19 –
i. first, after Widi refused an order to
uncover a cell window,
A. as to the conduct of defendants
Baldridge, Curren, Donahue, Kelley, Shallow,
Tempke, and Tobias, pursuant to
authorizations by defendants Birkholtz,
Galletta, and Tatum; and
B. as to the failure of defendants Curren,
Galletta, and Tatum to remove the
restraints;
ii. second after Widi told defendants Folnsbee
and Flynn that Tobias had not secured his wrist
restraint,
A. as to conduct of defendants Donahue,
Flynn, Myers, Shallow, Tempke, Thagouras,
Tobias, and Wydra, in placing Widi in tight
restraints, as approved by defendants
Birkholtz, Galletta, and Tatum; and
B. as to the failure of defendants Curren,
Galletta, Myers, Tatum, and Wydra to remove
the restraints;
iii. third, after Widi had slipped out of the
martin chain,
A. as to the conduct of defendants
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Belanger, Bruce, Myers, Napier, Noonan,
Queen, Spradlin, and Wydra, pursuant to
authorization by defendants Birkholtz,
Galletta, McCoy, and Tatum; and
B. as to the failure of defendants Curren,
Galletta, Hess, Myers, Tatum, and Wydra to
remove the restraints;
g. three incidents on August 20 –
i. first, an “immediate use of force,” after
Widi refused to remove the mattress covering his
cell window, as to the conduct of defendants
Balinas, Beegle, Buescher, Crimaldi, Donahue,
Dix, Flynn, Folnsbee, Hess, Lock, and Purselley,
when officers used a stick to dislodge the
mattress and pepper spray or other chemical
agents, pursuant to authorizations by defendants
Larin and Malcolm;
ii. second, an “immediate use of force,” when
officers failed to strip Widi of his contaminated
clothes and further contaminated him with their
hands, as to the conduct of defendants Balinas,
Beegle, Buescher, Hernandez, Hess, and Lock; and
iii. third, a “calculated use of force,” after
officers including defendants Buescher, Ferron,
Hess, and Purselley falsely charged Widi with
attempted assault,
A. as to the conduct of defendants
Balinas, Felix, Gerhart, Giamusso,
Hernandez, Kelley, and Myers, authorized by
defendants Birkholtz, Galletta, and Tatum;
and
B. as to the failure of defendants
Galletta, Hayden, Myers, and Tatum to remove
the restraints; and
h. one incident on September 22, as to the conduct
of defendants Myers and Wydra in leaving Widi in
handcuffs behind his back in a cell for hours.
5. Supervisory defendants Samuels, Norwood, Tatum,
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Williams, McCoy, and Galletta failed to train, supervise,
or discipline officers alleged to have been responsible for
each use of excessive force and/or misapplication of
restraints, which manifested the supervisors’ negligence
and deliberate indifference to a substantial risk of
serious harm to Widi, in violation of his rights under the
Eighth Amendment, with respect to:
a. incidents on February 21, February 22, February
27, April 24, July 18, July 19, and August 20, 2014 as
summarized in Claims 4(a)-(g); and
b. the September 22 incident at issue in Claim 4(h).
6. The United States is liable under the FTCA for:
a. the tortious conduct of its employees summarized
in Claims 4(a)-(g); and
b. the conduct of supervisory defendants summarized
in Claim 5(a).
7. In a manner actionable under Bivens, defendants:
a. Brown, Hess, Knight, McConnell, Napier, Paritsky,
and Taylor deprived Widi of his food trays four meals
in a row on September 29 and 30, 2014, in violation of
the Eighth Amendment;
b. Brown, Cooper, Crimaldi, Early, Hawes, Hess,
Hulme, McConnell, Paritsky, and Taylor deprived Widi
of one hour of out-of-cell time in SHU on nine dates
in August/September 2014 –
i. in violation of the Eighth Amendment; and
ii. in violation of the Fifth Amendment right to
due process; and
c. Brown and Dzubak deprived Widi of his property,
valued at $756.40, in violation of Widi’s Fifth
Amendment right to due process.
8. In violation of Widi’s Eighth Amendment right to
humane conditions of confinement, and to receive medical
care while incarcerated, in a manner actionable under
Bivens, defendants, with deliberate indifference to a
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substantial risk of serious harm to Widi:
a. as to Lewis and Bilodeau, delayed providing
treatment to Widi for symptoms relating to his
developing hernia in February/March 2014;
b. as to McCoy and Holloway, refused to authorize
laparoscopic surgery, causing Widi to undergo open
incision surgery for his hernia;
c. as to Lewis, Bilodeau, Larin, and Croteau, failed
to treat Widi with:
i. pain medication after surgery; and
ii. a clear liquid diet after surgery;
d. as to McCoy and Tatum, implemented a policy
restricting the distribution of medication to two
times per day, causing Widi to be denied mid-day
administration of prescribed pain medication, causing
Widi pain;
e. as to Lewis and Bilodeau, did not require Widi’s
medically necessary mattress to be returned to him
prior to the date of his hernia surgery, after Widi
requested that the mattress be returned;
f. as to Dzubak, Hulme, Knight, Kuznecow, Malcolm,
Thiel, and Tobias, took away Widi’s medically
necessary mattress:
i. before surgery, exacerbating his condition;
and
ii. after surgery, causing pain and injury.
9. The United States is liable under the FTCA for the
tortious conduct of its employees summarized in Claims
8(a)-(f).
10. The BOP has not timely and adequately responded to
Widi’s requests for certain documents, in violation of
FOIA, relating to:
a. Widi’s request for documents submitted to the BOP
in 2014, identified by the BOP as Request No. 2014-
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05459; and
b. Widi’s request for documents submitted to the BOP
on September 9, 2016.
Discussion
I. Claim-Splitting (Claim 1)
The Amended Complaint, asserting Claims 1(a) and 1(b)
against the FCI Ray Brook defendants who are also defendants in
Hudson, implicates the rule against duplicative litigation and
claim-splitting. “As part of its general power to administer
its docket, a district court may stay or dismiss a suit that is
duplicative of another federal court suit.” Curtis v. Citibank,
N.A., 226 F.3d 133, 138 (2d Cir. 2000); see also Colo. R. Water
Conserv. Dist. v. United States, 424 U.S. 800, 817 (1976) (as
“between federal district courts . . . though no precise rule
has evolved, the general principle is to avoid duplicative
litigation”).
“Claim-splitting has been analyzed as an aspect of res
judicata or claim preclusion.” Vanover v. NCO Fin. Servs.,
Inc., 857 F.3d 833, 841 (11th Cir. 2017). “‘[C]laim splitting
is . . . concerned with the district court’s comprehensive
management of its docket, whereas res judicata focuses on
protecting the finality of judgments.’” Id. (citation omitted).
The test for determining if claim-splitting has occurred as
between two pending cases is similar to the test applied to
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decide if res judicata bars a new case after judgment has
entered in the first case. Id. Courts analyze “‘(1) whether
the case involves the same parties and their privies, and (2)
whether separate cases arise from the same transaction or series
of transactions.’” Id. at 841-42 (citation omitted). Cf.
González-Piña v. Guillermo Rodríguez, 407 F.3d 425, 429 (1st
Cir. 2005) (in addition to final judgment in earlier action, res
judicata requires “‘sufficient identicality’” between the
parties and causes of action in both cases (citation omitted)).
Here, Widi is suing the FCI Ray Brook defendants in Claims
1(a) and 1(b) in this case, and in Hudson, which was opened in
the Northern District of New York in August 2016 after the court
in Widi I severed and transferred Widi’s claims against those
defendants. Widi objected to that transfer, sought
reconsideration, and appealed the transfer decision to the First
Circuit, but those efforts to retrieve the transferred claims
have not been successful. Widi’s interlocutory appeal of that
issue in Widi I was dismissed. See Widi v. Hudson, No. 17-1292
(1st Cir. June 28, 2017). Widi has not taken any steps to
terminate Hudson, so that case also remains pending at this
time. The claims in Hudson and in Widi II against the FCI Ray
Brook defendants arise from the same set of operative facts,
namely, Widi’s contacts with those defendants alleged to have
occurred before Widi’s transfer to FCI Berlin in February 2014.
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Claims 1(a) and 1(b) should be dismissed from Widi II to avoid
claim-splitting, without prejudice to Widi’s ability to litigate
such claims in Hudson.
II. Dismissal of Bivens Claims against Lewis and McCoy
Widi has asserted claims against United States Public
Health Service (“PHS”) Officers Kans Booz Lewis and Lirissia
McCoy in their individual capacities. Under 42 U.S.C. § 233(a),
claims for personal injury by commissioned officers of the PHS
are limited to the remedies available under the FTCA, 28 U.S.C.
§§ 1346(b), 2672. The immunity provided by § 233(a) precludes
Bivens actions against individual officers or employees for
harms arising out of the exercise of their PHS functions. Hui
v. Castaneda, 559 U.S. 799, 812-813 (2010). For reasons stated
in the August 19, 2016 Order (Doc. No. 161) dismissing similar
claims against the same defendants, all claims against McCoy and
Lewis in the Amended Complaint should be dismissed, and those
defendants should be dropped from this case.
III. Bivens Claims for Retaliation (Claims 2, 3)
Claims 2 and 3 in this action assert that FCI Berlin
officers and their supervisors retaliated against Widi for
exercising his First Amendment rights, in a manner actionable
under Bivens. To state a First Amendment retaliation claim, an
inmate must allege: (1) that the conduct which led to the
retaliation was protected by the First Amendment; (2) that he
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suffered adverse action at the hands of the prison officials;
and (3) that there was a causal link between the exercise of his
First Amendment rights and the adverse action taken. See Hannon
v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). De minimis reactions
to protected speech are not actionable. See Morris v. Powell,
449 F.3d 682, 685-86 (5th Cir. 2006). An adverse act taken in
response to protected conduct is not de minimis, however, if it
would deter an individual of ordinary firmness from exercising
his or her First Amendment rights. See id.; see also Starr v.
Dube, 334 F. App’x 341, 342-43 (1st Cir. 2009).
A. De Minimis Adverse Acts (Claims 3(a), 3(i)-(k))
Widi alleges in Claim 3(a) that Mullens assigned him a job
shortly after Widi had arrived at FCI Berlin, knowing that Widi
had just filed a lawsuit, and that she did so without notifying
Widi about the job assignment. Widi further alleges that
because he did not know about the job he did not appear for it,
resulting in Boynton charging Widi with refusing work or
program, and causing Domitrovich to transfer Widi to SHU while
that charge was pending.
Widi’s claim against Mullens for assigning him a job and
then not providing him with notice of the assignment is properly
dismissed at the preliminary review stage. An inmate of
ordinary firmness would not be deterred from engaging in First
Amendment activity by the threat that a unit manager would
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assign him a job and then not inform him of the assignment. The
facts pleaded by Widi indicate that it was not his lack of
knowledge of that assignment, per se, that directly resulted in
the disciplinary proceedings, but his failure to appear for the
job, which a different officer charged as a refusal to work.
The facts alleged do not indicate that Mullens orchestrated the
consequences of assigning Widi a job. Mullens’s conduct, to the
extent it was motivated by Widi’s First Amendment activities,
was at most a de minimis response to those activities that is
not actionable. Accordingly, Claim 3(a) should be dismissed.
Claims 3(i)-(k), as identified above, should also be
dismissed. Widi’s allegations about losing law library
printouts on one occasion; about missing four meals in a row;
and about losing his only hour of recreation time on three
isolated occasions in August/September 2014 (August 26,
September 21, September 25) and on three pairs of days in the
same time period (September 10-11; September 16-17; September
29-30), do not describe the type of consequences for engaging in
First Amendment activities that would deter an individual of
ordinary firmness from voicing complaints about prison
conditions. Accordingly, Claims 3(i)-(k) should be dismissed.
B. Discipline Relating to Job Refusal (Claims 3(b)-(c))
Widi alleges in Claims 3(b)-(c) that Boynton charged him
with refusing to work, and that Domitrovich put him in SHU while
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those charges were pending, in retaliation for Widi’s First
Amendment activities. Widi’s allegations, stripped of legal
conclusions, do not state a claim of retaliation as to Boynton
and Domitrovich. Widi alleges nothing in the Amended Complaint
suggesting that defendants Domitrovich or Boynton had knowledge
of Widi’s First Amendment activities when they initiated
disciplinary proceedings against him or placed him in SHU.
Without more, the allegations do not give rise to a reasonable
inference that their conduct was retaliatory. Accordingly,
Claims 3(b)-(c) should be dismissed.
C. Retaliation by Health Care Providers (Claim 3(h))
Widi alleges that defendant health care providers failed to
provide him with adequate medical care, as described more fully
in Claim 8(a)-(e), to retaliate against him for exercising First
Amendment rights. Stripped of legal conclusions, the Amended
Complaint fails to state a claim of First Amendment retaliation
relating to the decisions concerning Widi’s medical care, as to
Bilodeau, Larin, Croteau, Lewis, McCoy, and Holloway.
Accordingly, Claim 3(h) should be dismissed.
D. Highest Supervisor (Claim 3(l)(ii))
Widi alleges that BOP Director Charles Samuels knew of the
retaliatory actions taken against Widi and failed to correct
them, with reckless and callous indifference to Widi’s federal
rights. Widi does not allege facts regarding when Samuels
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acquired the knowledge at issue, and whether Samuels was also
aware of Widi’s First Amendment activities at a time and in a
manner that could establish the requisite causal connection
between Samuels’s alleged failure to act, sufficient to state a
claim for retaliation. Stripped of legal conclusions about
retaliation and Samuels’s reckless and callous indifference, the
Amended Complaint fails to state a claim upon which relief can
be granted, under Bivens, as to Samuels’s liability for the
adverse, retaliatory acts of lower level BOP employees alleged
in Claim 3. Accordingly, Claim 3(l)(ii) should be dismissed.
E. Retaliation Claims 2 & 3(d)-(g), 3(l)(i), 3(m)
Without prejudice to defendants’ ability to move to dismiss
the remaining retaliation claims in the Amended Complaint upon
any proper basis, in the Order issued this date, this court
directs service of Claims 2, 3(d)-(g), and 3(l)(i), upon
defendants identified in those claims. This court declines to
determine, at this time, in the absence of briefing on a
dispositive motion, whether a Bivens remedy is available with
respect to First Amendment retaliation claims. Cf. Ziglar v.
Abbasi, 137 S. Ct. 1843, 1860 (2017) (where plaintiff’s “claims
bear little resemblance to the three Bivens claims the Court has
approved in the past: a claim against FBI agents for handcuffing
a man in his own home without a warrant; a claim against a
Congressman for firing his female secretary; and a claim against
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prison officials for failure to treat an inmate’s asthma,”
courts, upon determining that claims present “a new Bivens
context,” must then conduct “a special factors analysis . . .
before allowing [the] damages suit to proceed”).
IV. Bivens and FTCA Claims for Excessive Force (Claims 4, 6)
Without prejudice to defendants’ ability to move to dismiss
any claim upon any proper basis, the court in the Order issued
this date directs service of Claim 4 upon defendants named in
those claims, and Claims 6(a) and (b) upon the United States.
V. Bivens Failure to Train, Discipline, or Supervise (Claim 5)
Widi alleges in a conclusory fashion that BOP Director
Samuels, Northeast Regional Director Joseph Norwood, FCI Warden
Tatum, and other FCI Berlin supervisory personnel failed to
adequately train, supervise, or discipline defendants alleged to
have used excessive force, or misapplied restraints, against
Widi, as alleged in Claim 4, and that they “knew or should have
known” that this would result in harm to Widi. Widi’s claim of
Bivens liability in this regard is conclusory. Stripped of
legal conclusions, the Amended Complaint fails to state a claim
upon which relief can be granted under Bivens for those
defendants’ own alleged deliberate indifference, or alleged
failure to adequately train, supervise, or discipline officers
regarding uses of force and restraints. Accordingly, Claim 5
should be dismissed.
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VI. Bivens Claims: Food Trays, Exercise, Property (Claim 7)
Widi alleges that defendants deprived him of his food trays
and out of cell time on a limited number of occasions in August
and September 2014, and items of his property, as detailed in
Claim 7, in violation of the Eighth Amendment and/or the Due
Process Clause of the Fifth Amendment. As to the Eighth
Amendment claims, Widi has not alleged facts stating a claim
that the officers were deliberately indifferent to a substantial
risk of serious harm to Widi relating to those events. See
Farmer v. Brennan, 511 U.S. 825, 828-29 (1994). The allegation
regarding Widi’s loss of exercise time, stripped of legal
conclusions, does not describe the imposition of sanctions that
exceed his sentence “in such an unexpected manner as to give
rise to protection by the Due Process Clause of its own force,”
or that impose any “atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted).
Moreover, Widi cannot state a claim for relief under Bivens
relating to his loss of property, as to which Widi accepted a
settlement offer from the United States. Cf. Hudson v. Palmer,
468 U.S. 517, 533 (1984) (“[A]n unauthorized intentional
deprivation of property by a state employee does not constitute
a violation of the procedural requirements of the Due Process
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Clause of the Fourteenth Amendment if a meaningful
postdeprivation remedy for the loss is available.”).
Accordingly, Claim 7 should be dismissed.
VII. Bivens and FTCA Medical Care Claims (Claims 8, 9)
Widi’s Eighth Amendment medical care claims, described in
Claim 8, are sufficient to survive preliminary review, against
the defendants named in Claim 8, except for the claims against
PHS Officers McCoy and Lewis, for reasons explained in this R&R.
The FTCA claim (Claim 9) asserted against the United States
arising from the allegations in Claim 8 also survives
preliminary review. In the Order issued this date, the court
directs service of Claim 9 against the United States, and Claim
8, under Bivens, against defendants named in Claim 8, other than
McCoy and Lewis.
VIII. Misjoinder and Severance of FOIA Claims (Claim 10)
“Unrelated claims against different defendants belong in
different suits,” in part “to ensure that prisoners pay the
required filing fees” and that prisoners do not avoid exposure
to the “three strikes” provision of 28 U.S.C. § 1915(g). George
v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Guiden v.
Werholtz, No. 11-3031-SAC, 2011 WL 1807443, at *21, 2011 U.S.
Dist. LEXIS 50890, at *65 (D. Kan. May 11, 2011) (“While joinder
is encouraged for purposes of judicial economy, the ‘Federal
Rules do not contemplate joinder of different actions against
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different parties which present entirely different factual and
legal issues.’” (citation omitted)). This court “may at any
time, on just terms, add or drop a party,” and “may also sever
any claim against a party.” Fed. R. Civ. P. 21 (emphasis
added).
Widi has improperly joined FOIA claims into an action that
asserts Bivens and FTCA claims of retaliation, excessive force,
and inadequate medical care against individual federal agents
and the United States, relating to Widi’s incarceration at FCI
Berlin. The interests of justice and judicial economy are not
served by keeping the FOIA claims in this action, as they
involve different proof, different standards, and a different
defendant, the BOP. Accordingly, Claim 10(a) and (b), asserted
against BOP, should be severed from this action and dismissed
without prejudice to Widi’s ability to refile those claims in a
new lawsuit in an appropriate federal district court.
Conclusion
For the foregoing reasons, the district judge should
approve this “Report and Recommendation on Amended Complaint”
and issue the following Order:
1. The Amended Complaint (Doc. No. 226) is the operative
complaint in this case.
2. Claims 1 and 10, as identified in the “Report and
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Recommendation on Amended Complaint,” are severed from this
action, and are dismissed without prejudice to Widi’s
ability to litigate Claim 1 in Widi v. Hudson, No. 9:16-cv-
01042-FJS-DJS (N.D.N.Y.), and to litigate Claim 10 in a
separate case in a court of appropriate jurisdiction.
3. Claims 3(a), 3(b), 3(c), 3(h), 3(i), 3(j), 3(k),
3(l)(ii), 5, and 7, as identified in the “Report and
Recommendation on Amended Complaint,” are dismissed.
4. All claims in the Amended Complaint against B. Cooper,
FNU Early, FNU Hawes, Kans Booz Lewis, Lirissia McCoy, and
Charles Samuels are dismissed.
5. B. Cooper, FNU Early, Jeffrey Gluc, Michelle Gonyea,
FNU Hawes, Donald Hudson, Kans Booz Lewis, Yancey Matteau,
Lirissia McCoy, David Salamy, Charles Samuels, and the
Federal Bureau of Prisons (“BOP”) are dropped as
defendants. Brian Smith, the BOP Director, “FNU McGurn,”
and all John Doe defendants are also dropped from this
action, as the Amended Complaint does not state any claims
against them.
Any objections to the “Report and Recommendation on Amended
Complaint” must be filed within fourteen days of receipt of this
notice. See Fed. R. Civ. P. 72(b)(2). The fourteen day period
may be extended upon motion. Failure to file specific written
objections within the specified time waives the right to appeal
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the district court’s order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
July 17, 2017
cc: David J. Widi, Jr., pro se
T. David Plourde, Esq.
Terry L. Ollila, Esq.
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