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
Plaintiff David Widi’s complaint in this removal action
(doc. no. 2, at pp. 2-43) is before this court for preliminary
review pursuant to 28 U.S.C. § 1915A and LR 4.3(d)(1). See
Crooker v. Burns, 544 F. Supp. 2d 59, 67 (D. Mass. 2008)
(complaints in removal actions are subject to review under 28
U.S.C. § 1915A).
Preliminary Review Standard
In determining whether a pro se pleading states a claim,
1Defendants named in this action are the Federal Bureau of
Prisons; United States Probation and Pretrial Services;
Probation Officer Scott Hastings; Federal Correctional
Institution (“FCI”) Ray Brook Warden Donald Hudson; FCI Ray
Brook Case Management Coordinator Gaunyea, whose first name is
unknown (“FNU”); FCI Ray Brook Unit Manager David Salamy; FCI
Ray Brook Case Managers FNU Glue and Y. Matteau; FCI Berlin
Warden Esker Tatum; FCI Berlin Case Management Coordinator Dan
Sullivan; FCI Berlin Unit Manager Wanda Mullins; and FCI Berlin
Correctional Counselors L. Hogan and FNU Langley.
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for the purposes of this court’s preliminary review of prisoner
pleadings under 28 U.S.C. § 1915A and LR 4.3(d)(1), the court
construes the pleading liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007). Disregarding any legal conclusions, the
court considers whether the factual content in the pleading and
inferences reasonably drawn therefrom, taken as true, state a
plausible claim to relief. Hernandez-Cuevas v. Taylor, 723 F.3d
91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
Background
Widi is currently incarcerated at the Federal Correctional
Institution (“FCI”) in Berlin, New Hampshire. Widi’s medium
security classification at FCI Berlin is based on what Widi
alleges is an improperly elevated criminal history score. Widi
asserts that his present score exceeds that which appears in the
Presentence Report (“PSR”) prepared by Probation Officer Scott
Hastings, which the trial court used in sentencing Widi.
Widi was previously an inmate at FCI Ray Brook in New York.
Widi alleges that on January 8, 2014, FCI Ray Brook defendants
Salamy, Glue, and Matteau, knowing that Widi had filed
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administrative grievances against unspecified FCI Ray Brook
staff, together agreed to raise Widi’s criminal history score to
a level IV in a manner Widi asserts was contrary to BOP
policies, falsely assigned Widi an extra custody point for
abusing drugs or alcohol in the last five years, and arranged
for Widi’s transfer to FCI Berlin, a medium security facility
allegedly known for “deplorable” conditions. Widi asserts that,
but for the improper elevation of his criminal history score, he
would have been eligible for a transfer to a minimum security
facility on January 8, 2014. Widi complained to each of the FCI
Ray Brook defendants, including supervisory defendants Hudson
and Gaunyea, and each of them told Widi, on January 9, 2014,
that if Widi had not filed administrative grievances while at
FCI Ray Brook, he would not be going to a medium security
facility.
Widi further alleges that after his transfer to FCI Berlin,
FCI Berlin defendants Langley and Hogan, citing FCI Berlin
warden Tatum’s policy, refused Widi’s requests for certain forms
necessary to pursue grievances. Widi asserts that he
complained, by way of an electronic communication to Tatum, that
he had been improperly denied certain grievance forms, and that
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his transfer to FCI Berlin and medium security classification
were not proper. The warden, in response, stated that
appropriate departments would review Widi’s concerns.
Thereafter, FCI Berlin Case Manager Bradley corrected Widi’s
drug/alcohol abuse point score, but declined to alter the
criminal history score, deferring to defendant Mullens on that
issue.
Widi asserts that he met several times with defendant
Mullens and provided her with documents to substantiate his
claims regarding his criminal history score, but that Mullens
refused to reduce Widi’s score because she believed that the PSR
criminal history score was incorrect. Widi further alleges that
Mullens and Tatum each specifically told Widi that he would have
been at a low security facility if he had not filed complaints
concerning prison staff members through the administrative
remedy process at FCI Ray Brook and FCI Berlin. See Doc. No. 1-
1, at 18-20. Widi asserts that Case Management Coordinator
Sullivan similarly stated that no change to Widi’s criminal
history score would be effected due to Widi’s filing of
administrative grievances.
Widi further alleges that at some point prior to February
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6, 2014, Mullens contacted Hastings regarding Widi, and that
Hastings agreed with Mullens that the PSR was incorrect. Widi
asserts that Hastings never responded to a letter from Widi
complaining about his issues with his criminal history score.
Widi asserts the following claims for damages and/or
injunctive relief:
1. Defendant U.S. Probation and Pretrial Services
System (“Probation”) willfully and intentionally generated
inaccurate records relating to Widi by agreeing with BOP
staff that the PSR was inaccurate, resulting in an adverse
effect upon Widi, in violation of 5 U.S.C. § 552a(g)(1)(C)
and rendering Probation liable to Widi under 5 U.S.C.
§ 552a(g)(4).
2. Defendant BOP willfully and intentionally
generated inaccurate records used to calculate Widi’s
custody score, which denied Widi rights, opportunities,
benefits, and/or privileges associated with minimum
security classification, in violation of 5 U.S.C.
§ 552a(g)(1)(C), rendering BOP liable to Widi under 5
U.S.C. § 552a(g)(4).
3. FCI Ray Brook defendants Glue, Matteau, Salamy,
Gaunyea, and Hudson violated Widi’s rights under the First
Amendment by (a) miscalculating Widi’s custody score to
keep him at a medium security level, and (b) effecting
Widi’s transfer to FCI Berlin, in retaliation for Widi’s
filing of administrative grievances at FCI Ray Brook.
4. FCI Berlin defendant Mullens violated Widi’s
rights under the First Amendment by refusing to correct
Widi’s custody level calculation, in order to keep Widi
classified as a medium security inmate, in retaliation for
Widi’s filing of administrative grievances.
5. FCI Berlin supervisors Tatum and Sullivan
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violated Widi’s rights under the First Amendment, in that
they were aware of the unconstitutional retaliatory actions
taken by Mullens and approved and authorized those actions,
because they intended to retaliate against Widi for filing
administrative grievances.
6. Defendant Probation Officer Hastings violated
Widi’s rights under the First Amendment, in that Hastings
knowingly agreed with and authorized Mullens’s incorrect
assessment of Widi’s criminal history score, to retaliate
against Widi for filing administrative grievances.
7. FCI Berlin defendants Hogan and Langley violated
Widi’s rights under the First Amendment, in that they
refused to provide Widi with forms necessary to pursue
administrative grievances at FCI Berlin, to retaliate
against Widi for using the administrative remedy process.
8. FCI Berlin supervisors Tatum and Mullens violated
Widi’s rights under the First Amendment, in that they
approved and authorized Hogan’s and Langley’s conduct in
refusing Widi the forms needed to utilize the
administrative remedy process at FCI Berlin.
Discussion
I. Privacy Act Claims (Claims 1 and 2)
The Privacy Act of 1974, codified in part at 5 U.S.C.
§ 552a, contains a comprehensive and detailed set of
requirements for the management of confidential records
held by Executive Branch agencies. If an agency fails to
comply with those requirements “in such a way as to have an
adverse effect on an individual,” the Act authorizes the
individual to bring a civil action against the agency. For
violations found to be “intentional or willful,” the United
States is liable for “actual damages.”
F.A.A. v. Cooper, 132 S. Ct. 1441, 1446, 182 L. Ed. 2d 497
(2012) (citations omitted).
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A. Probation (Claim 1)
Widi asserts in Claim 1 above that Probation is liable for
maintaining inaccurate records, which BOP used (a) to assign an
improperly elevated criminal history score to him, and (b) to
classify him as a medium security inmate. The Privacy Act
imposes duties only on “Executive Branch agencies,” see id.,
however, and as Probation is a unit of the federal courts, it is
not properly named as a defendant to a Privacy Act claim. See
Ramirez v. Dep’t of Justice, 594 F. Supp. 2d 58, 62 (D.D.C.
2009), aff’d, No. 10-5016, 2010 WL 4340408 (D.C. Cir. Oct. 19,
2010). Accordingly, Claim 1 above should be dismissed, and the
Probation should be dropped from this action.
B. BOP (Claim 2)
Widi has alleged in Claim 2, above, that BOP is liable for
wilfully and intentionally using inaccurate records to classify
him as a medium security inmate, adversely affecting him by
denying him the privileges and benefits associated with a
minimum security classification. That claim, however, is not
viable, as the BOP has exercised its authority under the Privacy
Act, 5 U.S.C. § 552a(j)(2), to exempt from the Act’s civil
enforcement provisions “several systems of records the agency
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keeps,” including the Inmate Central Records System, under 28
C.F.R. 16.97(j). Pagani-Gallego v. Sabol, No. CIVA 07-40016-
PBS, 2008 WL 886032, at *6 (D. Mass. Mar. 27, 2008). The
complaint indicates that the Inmate Central Records System
contains the records at issue in this case. Therefore, Widi has
“no cause of action under [the Privacy Act] for money damages or
injunctive relief” relating to BOP’s alleged wilful and
intentional use of allegedly inaccurate records in classifying
Widi as a medium security inmate. Id., 2008 WL 886032, at *6
(dismissing similar claim) (citing Martinez v. Bureau of
Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (per curiam); Scaff-
Martinez v. Bureau of Prisons, 160 F. App’x. 955, 956-57 (11th
Cir. 2005) (per curiam); Collins v. Bureau of Prisons, No.
5:06cv129, 2007 WL 2433967, at *3 (S.D. Miss. Aug. 2, 2007)).
Therefore, Claim 2, above, should be dismissed, and BOP should
be dropped from this action.
II. Retaliation (Claims 3-8)
A. Elements
To state a claim for retaliation for the exercise of First
Amendment rights, an inmate must allege: (1) that the conduct
which led to the retaliation was protected by the First
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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 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 First Amendment
rights. See id.
B. FCI Ray Brook Defendants (Claim 3)
In Claim 3, Widi alleges that FCI Ray Brook defendants
improperly classified him as a medium security inmate, and
transferred him to FCI Berlin, when he would otherwise have been
eligible for a transfer to a minimum security facility, in
retaliation for Widi’s filing of grievances at FCI Ray Brook.
Widi’s allegations appear sufficient to warrant service upon the
FCI Ray Brook defendants, and for that reason, the court, on
this date, has directed service of Claim 3 upon defendants
Hudson, Gaunyea, Salamy, Glue, and Matteau. The court’s order
directing service upon those defendants does not bar defendants
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from asserting any available defense or other response to Claim
3, including an argument that this claim should be dismissed, or
transferred, because this court lacks personal jurisdiction over
the FCI Ray Brook defendants.
C. Mullens, Sullivan, and Tatum (Claims 4 and 5)
Widi has further alleged that defendants Mullens, Sullivan,
and Tatum did not properly recalculate Widi’s criminal history
score, thereby depriving Widi of an opportunity to be
transferred to a minimum security facility, in order to
retaliate against Widi for filing administrative grievances.
The facts alleged in the complaint are sufficient, at this stage
of the case, to warrant service of Claims 4 and 5 against those
FCI Berlin defendants, and, accordingly, the court has directed
service of the complaint upon Mullens, Sullivan, and Tatum.
D. Hastings (Claim 6)
Widi has alleged that Probation Officer Hastings’
acquiescence in and approval of Mullens’ recalculation of Widi’s
criminal history score was a conspiratorial and retaliatory act
taken against Widi for exercising his First Amendment rights.
The allegations underlying those claims, however, when stripped
of legal conclusions, lack specific factual allegations
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sufficient to show that Hastings took any retaliatory adverse
action against Widi. Because Widi has failed to plead facts
showing the requisite causal connection, the claim against
Hastings, identified as Claim 6 above, should be dismissed, and
Hastings should be dropped from this action.
E. Grievance Forms (Claims 7 and 8)
As to Claim 7, Widi has failed to show more than de minimis
retaliatory conduct. Widi alleges that prison officers
retaliated against him for filing grievances by denying him
access to certain grievance forms. Widi has pleaded facts,
however, showing that he was able to raise concerns through the
prison system about the grievance process, his transfer, and his
custody score. Widi obtained some relief from prison officials,
in that prison officials rectified the erroneous inclusion of an
extra point for drug/alcohol abuse in Widi’s custody score.
This court concludes that no inmate of ordinary firmness, in
Widi’s circumstances, would be deterred from filing grievances
for fear that requisite grievance forms would not be tendered in
the future upon request. See Green v. Snyder, 525 F. App’x 726,
730 (10th Cir. 2013). Accordingly, the district judge should
dismiss Claim 7 for failure to state a plausible claim for
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relief. Claim 8 should also be dismissed, as there can be no
supervisory liability for subordinates’ conduct that does not
violate the federal constitution.
Conclusion
For the foregoing reasons, the district judge should
dismiss Widi’s Privacy Act claims (Claims 1 and 2, above),
Widi’s First Amendment retaliation claim against defendant
Hastings (Claim 6 above), and First Amendment retaliation and
supervisory liability claims against Hogan, Langley, Mullens,
and Tatum, arising out of the refusal to provide Widi with
grievance forms (Claims 7 and 8 above).
The district judge should further order that defendants
Federal Bureau of Prisons, the United States Probation and
Pretrial Services, L. Hogan, FNU Langley, and Scott Hastings be
dropped from this case. In a separate order issued this date,
the court has directed service of the complaint upon the
remaining defendants, with respect to Claims 3-5, numbered
above.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
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R. Civ. P. 72(b)(2). Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
June 24, 2014
cc: David J. Widi, Jr.
T. David Plourde, Esq.
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