Vazquez-Castro v. Office of General Counsel et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jose A. Vazquez-Castro
v. Civil No. 17-cv-072-PB
Office of General Counsel,
Federal Bureau of Prisons, U.S.
Department of Justice, P. Deveney,
S. Labrenz, J. Buesche, D. Shuler,
M. Lejeune, B. Beagle, FCI Berlin
Warden Esker Tatum, Jr., Warden R.
Hazlewood, and Capt. FNU Duck
REPORT AND RECOMMENDATION
Before the court is plaintiff Jose A. Vazquez-Castro’s
complaint and complaint addenda (Doc. Nos. 1, 4, 4-1, 6, 6-1, 7,
7-1).1 These filings are before the court for preliminary review
under 28 U.S.C. § 1915A and LR 4.3(d)(1).
Preliminary Review Standard
The magistrate judge in this court conducts a preliminary
review of prisoner complaints filed in forma pauperis. See LR
4.3(d)(1). The magistrate judge may recommend to the district
judge that claims be dismissed if, among other things, the court
lacks jurisdiction, a defendant is immune from the relief
1The court’s Order issued this date granted Vazquez-Castro’s
three motions to amend the complaint (Doc. Nos. 4, 6, 7).
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sought, or the complaint fails to state a claim upon which
relief may be granted. See 28 U.S.C. §§ 1915(e)(2),
1915A(b)(1); LR 4.3(d)(1)(A). 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
Vazquez-Castro was an inmate at the Federal Correctional
Institution in Berlin, New Hampshire (“FCI Berlin”) in 2015-
2016, before he was transferred in June 2016 to a different
Federal Bureau of Prisons (“BOP”) facility, FCI Ray Brook in New
York. Vazquez-Castro alleges that in March 2015, FCI Berlin
Case Manager P. Deveney received information indicating that
Vazquez-Castro had been in a fight. Vazquez-Castro states that
the information Deveney received was false. Based on that
information, on March 13, 2015, Deveney caused Vazquez-Castro to
be transferred to the FCI Berlin Special Housing Unit (“SHU”).
Vazquez-Castro remained in SHU for three months while the matter
was investigated, until he was cleared of wrongdoing.
Vazquez-Castro alleges that on March 17, 2015, while he was
in SHU, Deveney interfered with Vazquez-Castro’s request for
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access to an administrative grievance form, known as a BP-8,
which Vazquez-Castro wanted to use to complain about his
placement in SHU. Vazquez-Castro specifically alleges that
Deveney improperly required him to record the reasons he wanted
to have the form in a “cop-out” form, before Vazquez-Castro
would be allowed to have access to a BP-8 grievance form.
Vasquez-Castro states that Deveney’s actions in this regard were
contrary to BOP regulations.
In April 2015, after Vazquez-Castro had complained to
Deveney’s supervisors about the “hurdle” Deveney had placed in
the way of his access to a BP-8 form, Deveney hand-delivered a
BP-8 form to Vazquez-Castro. Vazquez-Castro filled out that
form. Deveney returned prison officials’ written response to it
to Vazquez-Castro, in a manner contrary to BOP regulations, by
handing it to plaintiff’s cellmate and telling him that the
response belonged to Vazquez-Castro.
On July 29, 2015, Deveney charged Vazquez-Castro with the
disciplinary offense of failing to report for a scheduled team
meeting, in Incident Report No. 2743875. Vazquez-Castro asserts
that although the charge was false, and supervisory BOP
officials ultimately expunged the charge from his record in
October 2015, the disciplinary panel, on which D. Shuler sat,
found him guilty of the charge in July 2015 and sentenced him to
a loss of visits and loss of commissary for 30 days. Vazquez-
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Castro asserts that he was not permitted to call witnesses or to
have a staff representative at the hearing. Plaintiff further
asserts that after he appealed the finding to FCI Berlin Warden
Esker Tatum, Tatum did not adequately investigate the charge or
respond to Vazquez-Castro’s appeal.
On March 1, 2016, Deveney inspected Vazquez-Castro’s FCI
Berlin cell and issued Incident Report No. 2821910, charging him
with having an untidy assigned space. Vazquez-Castro asserts
that although that incident report was also false, the
disciplinary panel, including defendants Labrenz and Buesche,
found him guilty and sentenced him to 30 days loss of email.
Vazquez-Castro alleges that he was again denied an opportunity
to call witnesses during that disciplinary hearing, and that FCI
Warden Hazlewood failed to investigate or properly respond to
his appeal.
On June 6, 2016, Vazquez-Castro was ordered to prepare his
belongings for a transfer to another facility, and then was sent
to the FCI Berlin SHU. Vazquez-Castro asserts that another FCI
Berlin inmate, Carlos Jaquez, was summoned for a transfer on the
same date but was not similarly placed in SHU. A detention
order issued by FCI Berlin Lt. McCoy, attached to the pleadings
here, states that Vazquez-Castro was placed in SHU because he
was under investigation for violating unspecified BOP
regulations. Prison officials never told Vazquez-Castro what
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the investigation concerned while he remained in SHU.
Shortly after his three-day stay in SHU, Vazquez-Castro was
transferred to FCI Ray Brook. The reason given for the
transfer, which Vazquez-Castro alleges Hazlewood, Camp
Administrator Lejeune, and Case Manager Beagle authorized, was a
need to increase the population at FCI Ray Brook. See Req. for
Transfer/App. of Mgt. Variable, May 27, 2016 (Doc. No. 6-1, at
6). Vazquez-Castro takes issue with the legitimacy of that
reason; in his view, FCI Berlin also needed more inmates at that
time, as many FCI Berlin inmates held more than one prison job.
Vazquez-Castro filed this action before the BOP Office of
General Counsel had completed its review of Vazquez-Castro’s
administrative appeal of Incident Report No. 2821910. See Doc.
No. 1. After that review was completed, but before this court
finished its preliminary review of the pleadings here, Vasquez-
Castro moved to amend the complaint to add new defendants and
claims, see Doc. Nos. 4, 6, 7. This court has construed those
complaint amendments (Doc. Nos. 4-1, 6-1, 7-1) and the factual
allegations in the underlying motions (Doc. Nos. 4, 6, 7), as
addenda to Vazquez-Castro’s complaint (Doc. No. 1) in this case.
Claims
Vazquez-Castro asserts the following claims in this action:
1. Defendant P. Deveney retaliated against Vazquez-
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Castro, for exercising his right to petition the government
for a redress of grievances, under the First Amendment, by:
a. requiring Vazquez-Castro to fill out a “cop out”
before he would be given a form BP-8 in March 2015;
b. falsely charging Vazquez-Castro in Incident
Report No. 2743875, and
c. falsely charging Vazquez-Castro in Incident
Report No. 2821910.
2. Defendant P. Deveney violated BOP regulations and
Vazquez-Castro’s Fifth Amendment right to due process, by:
a. requiring Vazquez-Castro to fill out a “cop out”
before he would be given a form BP-8 in March 2015;
b. falsely charging Vazquez-Castro in Incident
Report No. 2743875, and
c. falsely charging Vazquez-Castro in Incident
Report No. 2821910.
3. Defendants P. Deveney, D. Shuler, S. Labrenz, J.
Buesche, and FCI Wardens Esker Tatum and R. Hazlewood, in
connection with the investigations and proceedings relating
to Incident Report Nos. 2743875 and 2821910 violated BOP
regulations and Vazquez-Castro’s Fifth Amendment right to
due process.
4. By giving a response to Vazquez-Castro’s
administrative grievance form to Vazquez-Castro’s cellmate
for delivery to Vazquez-Castro, in violation of BOP
regulations, Deveney violated Vazquez-Castro’s right to
privacy in his legal papers.
5. Defendants Capt. Duck, Lejeune, and Hazlewood treated
Vazquez-Castro differently than another inmate pending a
facility transfer, by placing Vazquez-Castro, and not the
other inmate, in SHU for three days in June 2016, in
violation of Vazquez-Castro’s right to equal protection
under the Fifth Amendment.
6. Defendants Hazlewood, Lejeune, and Beagle authorized
Vazquez-Castro’s transfer to FCI Ray Brook in June 2016, to
retaliate against Vazquez-Castro for exercising his First
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Amendment right to petition the government for redress of
grievances.
7. Defendant BOP Office of General Counsel failed to
complete a timely review of plaintiff’s administrative
appeal of Incident Report No. 2821910, rendering that
office subject to an order to compel completion of that
review, under 28 U.S.C. § 1361.
Discussion
I. Mandamus (Claim 7)
When Vazquez-Castro filed this action, the BOP Office of
General Counsel had not yet completed its review of his
administrative appeal of Incident Report No. 2821910. This
court construed the action as having been filed to obtain relief
in the nature of a writ of mandamus because of that agency’s
failure to act. Vazquez-Castro has since notified this court
that the agency completed its review of the appeal at issue.
Claim 7, seeking mandamus relief, is moot, and, accordingly,
Claim 7 should be dismissed as moot.
II. First Amendment Retaliation (Claims 1 and 6)
A. Standard
Vazquez-Castro asserts First Amendment retaliation claims.
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 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
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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).
“Adverse acts will be considered de minimis when they
‘cause an inmate only a few days of discomfort, impose a
[single] minor sanction, or impose an otherwise
constitutional restriction on the inmate.” For example,
“the filing of a disciplinary charge carrying potentially
severe sanctions” that is later dismissed after a hearing
does not constitute an adverse action.
Williams v. Cutler, No. 1:14-CV-539-NT, 2016 WL 6651301, at *2
(D. Me. Nov. 10, 2016) (citations omitted).
B. Claim 1 – Deveney’s Conduct
Here, Vazquez-Castro seeks to base Claim 1(a) on an
allegation that Deveney put an improper paperwork “hurdle” in
the way of his ability to obtain a form BP-8. No inmate of
ordinary firmness, however, would be deterred from filing a
grievance or lawsuit upon the threat of having to fill out an
extra form before obtaining an administrative grievance form.
Accordingly, Claim 1(a) should be dismissed.
Vazquez-Castro further alleges that Deveney filed two false
disciplinary charges against him, upon which he was found guilty
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and sentenced him to 30 days loss of email, and loss of
commissary and visits, respectively. The charge resulting in a
loss of commissary and visits was ultimately expunged from
Vazquez-Castro’s record. No inmate of ordinary firmness would
be deterred from filing grievances and lawsuits upon the threat
that he would be subject to losing email for a month, or to a
guilty finding carrying a sanction of losing commissary and
visits for a month, with the prospect that the record would be
expunged. Accordingly, Claims 1(b) and (c) should be dismissed.
C. Claim 6 – Retaliatory Transfer
Vazquez-Castro also bases a First Amendment retaliation
claim on defendants’ role in authorizing his transfer to FCI Ray
Brook in June 2016. A transfer from a medium security prison in
one state to a maximum security prison in another state may
constitute a non-de minimis adverse act where the transfer would
effect some hardship on the inmate. See Hannon, 645 F.3d at 49.
Vazquez-Castro has not alleged any facts showing that his
transfer from FCI Berlin to FCI Ray Brook caused him any
hardship. Moreover, the facts alleged regarding the timing and
sequence of the transfer and the need for more inmates at FCI
Berlin do not give rise to a reasonable inference that prison
officials lacked a legitimate purpose in transferring him to FCI
Ray Brook, or that retaliation for Vazquez-Castro’s First
Amendment activities was a motivating factor. Accordingly,
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Claim 6 is properly dismissed.
III. Fifth Amendment Due Process (Claims 2 and 3)
Vazquez-Castro has alleged in Claims 2 and 3 that
defendants’ conduct in requiring him to fill out a cop-out to
acquire a BP-8 form, in filing false disciplinary charges, and
in inhibiting his ability to call witnesses or have a staff
representative in the disciplinary proceedings on Incident
Report Nos. 2743875 and 2821910 all violated his Fifth Amendment
right to due process. Protected liberty interests, for a
prisoner challenging the imposition of sanctions through
disciplinary proceedings, are “generally limited to freedom from
restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due
Process Clause of its own force nonetheless imposes 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). The sanctions and restrictions
imposed upon Vazquez-Castro, including extra paperwork for
filing a grievance, and the temporary loss of email, commissary,
and visits, are not atypical or significant hardships, and thus
do not give rise to any viable due process claim. See, e.g.,
id. (30 days in punitive segregation did not implicate liberty
interest). Accordingly, Claims 2 and 3 should be dismissed.
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IV. Right to Privacy in Legal Papers (Claim 4)
Vazquez-Castro alleges that Deveney’s conduct in improperly
giving the prison’s response to Vazquez-Castro’s BP-8 to his
cellmate, for delivery to him, violated Vazquez-Castro’s right
to privacy in his legal mail. An “isolated incident of mail
tampering is usually insufficient to establish a constitutional
violation.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003).
Vazquez-Castro has not alleged any facts indicating that a
disclosure of any confidential legal information occurred either
on this one occasion, or on any other occasion. A declaration,
filed as an attachment to Vazquez-Castro’s pleadings, states
that the cellmate did not look at the form before placing it
face-down on Vazquez-Castro’s bed for him to review when he
returned to the cell. See Decl. Mark Judd, July 21, 2015 (Doc.
No. 7-1, at 17). Under such circumstances, Vazquez-Castro has
failed to state a claim upon which relief can be granted for any
violation of his right to privacy in his legal papers.
V. Equal Protection (Claim 5)
“The Equal Protection Clause contemplates that similarly
situated persons are to receive substantially similar treatment
from their government.” Davis v. Coakley, 802 F.3d 128, 132
(1st Cir. 2015) (citation omitted). To establish an equal
protection claim, a plaintiff needs to allege facts showing that
“‘(1) the [plaintiff], compared with others similarly situated,
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was selectively treated; and (2) that such selective treatment
was based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to
injure [the plaintiff].’” Id. at 132-33 (citations omitted).
Proof of discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause. Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977).
Vazquez-Castro does not allege any facts indicating that he
was treated differently than other inmates on the basis of his
affiliation with any protected class. Rather, he points to
another inmate who was also scheduled for a transfer on the same
day, who was not put in SHU first, as Vazquez-Castro was. The
facts alleged as to that other inmate, however, fail to show
that they were similarly situated in all relevant respects. An
exhibit attached to the complaint here indicates that Vazquez-
Castro was detained for three days in SHU to investigate him for
violating BOP regulations. See Admin. Detention Order, June 6,
2016 (Doc. No. 6-1), at 5. Vazquez-Castro does not allege facts
showing that the other inmate was similarly under investigation
for violating BOP regulations, or that the detention notice was
false. Further, Vazquez-Castro has not alleged facts to support
a claim that the delay in his transfer or three days in SHU was
the result of any discriminatory animus. For these reasons,
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Claim 5 should be dismissed.
VI. Violations of BOP Regulations
An inmate cannot assert a claim based on a correction
official’s failure to follow prison policies. See Gibbs v.
Hernandez, No. EDCV 13-382-CAS KK, 2015 WL 135885, at *1 n.1,
2014 U.S. Dist. LEXIS 180121, at *2 n.1 (C.D. Cal. Nov. 21,
2014) (“Although ‘[p]rison regulations governing the conduct of
correctional officers’ are ‘relevant in determining whether an
inmate’s right was clearly established,’ they do not confer
rights.” (citations omitted)), R&R accepted, 2015 WL 135885, at
*1, 2015 U.S. Dist. LEXIS 3608 (C.D. Cal. Jan. 8, 2015), aff’d,
667 F. App'x 972 (9th Cir. 2016); Joost v. Cornell Corr., Inc.,
No. 97-512T, 1998 WL 939531, at *7 (D.R.I. Dec. 11, 1998) (BOP
“regulations and program statements upon which plaintiff relies
neither expressly nor impliedly confer a private right of action
upon prisoners”), R&R approved, No. 97-512T (D.R.I. Mar. 29,
1999). Accordingly, to the extent Vazquez-Castro seeks to base
any claim in this case on any defendant’s violations of BOP
regulations, such claims should be dismissed.
Conclusion
For the foregoing reasons, the district judge should
dismiss all claims in this action, pursuant to 28 U.S.C. § 1915A
and 28 U.S.C. § 1915(e)(2). Any objections to this Report and
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Recommendation 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 objections
within the specified time waives the right to appeal 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
September 12, 2017
cc: Jose A. Vazquez-Castro, pro se
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