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 has filed a pleading, docketed as an
“Amended Complaint” (doc. no. 21), which is before this court
for preliminary review, pursuant to 28 U.S.C. § 1915A and LR
4.3(d)(1). Also before the court is defendants’ motion to
dismiss (doc. no. 20), which was filed before plaintiff filed
the Amended Complaint. That motion to dismiss has been referred
1Defendants named in the Amended Complaint (doc. no. 21) are
the Federal Bureau of Prisons; former Federal Correctional
Institution (“FCI”) Ray Brook Warden Donald Hudson; and FCI Ray
Brook Unit Manager David Salamy, Case Managers FNU Glue and Y.
Matteau, and Case Management Coordinator Gaunyea, whose first
name is unknown (“FNU”). Also named as defendants are the
following FCI Berlin employees: Warden Esker Tatum; Case
Management Coordinator Dan Sullivan; Unit Manager Wanda Mullins;
Associate Warden FNU McGurn; Capt. A. Galetta; Lt. FNU
Domitrovich; Lt. J. Hess; Lt. D. Myers; Lt. N. Hayden; Health
Services Administrator FNU McCoy; Physician’s Assistant K.
Lewis; Nurse Brad Malcolm; Nurse Christine Larin; Nurse Kathy
Bilodeau; FNU Croteau; and Corrections Officers (“COs”) R.
Smith, M. Dzubak, FNU Crimaldi, FNU Hubble, W. Knight, FNU
Teale, J. Hulume, FNU Kuznecow, R. Cone, C. Tobias, FNU Barger,
and twenty-two others, identified as “Does 1-22.”
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to this magistrate judge for a recommendation as to disposition.2
Background
Widi is a federal prisoner currently incarcerated at the
Federal Correctional Institution (“FCI”) in Berlin, New
Hampshire. Widi was previously an inmate at FCI Ray Brook in
New York. Widi filed this suit in New Hampshire Superior Court
in Coös County in February 2014, and defendants removed the
action to this court in April 2014. In a June 24, 2014, Report
and Recommendation (doc. no. 4) (“June 24 R&R”), the undersigned
magistrate judge recommended, among other things, that the
district judge dismiss all claims except Claims 3-5, as numbered
in the June 24 R&R. The district judge approved the June 24 R&R
on July 23, 2014. See Order (doc. no. 9).
Defendants Gaunyea, Salamy, Glue, Matteau, Tatum, Sullivan,
and Mullins jointly moved to dismiss the remaining claims in the
original complaint on grounds including lack of personal
jurisdiction over the Ray Brook defendants (Gaunyea, Salamy,
Glue, Matteau, and Hudson), failure to state a claim, and
failure to exhaust administrative remedies as required by the
Prison Litigation Reform Act (“PLRA”). See Mot. to Dismiss
2Widi’s motion to stay this case for sixty days (doc. no.
24) is addressed in an order issued on this date.
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(doc. no. 20). That motion is currently pending, but, for
reasons stated herein, should be denied without prejudice as
moot.
Plaintiff filed the Amended Complaint at issue on October
9, 2014, less than three days after defendants moved to dismiss
the original complaint. The Amended Complaint asserts one claim
previously dismissed from this case (Claim 1 below), alleging
that unspecified Federal Bureau of Prisons (“BOP”) agents waived
a regulatory exemption which this court cited in the June 24 R&R
as grounds for dismissing the same claim previously. The
Amended Complaint also reasserts claims that this court allowed
to proceed (Claims 2(a) and 3 below), and further clarifies
and/or modifies claims that were served on Mullins, Sullivan,
and Tatum (Claims 2(b)-(c) below). The first three claims in
the Amended Complaint, are as follows:
1. Defendant BOP through its agents intentionally
generated inaccurate records to calculate Widi’s custody
score, which denied Widi rights, opportunities, benefits,
and/or privileges associated with minimum security
classification, in violation of the Privacy Act, 5 U.S.C.
§ 552a(g)(1)(C), and waived the regulatory exemption
relating to those records, rendering BOP liable to Widi
under 5 U.S.C. § 552a(g)(4).
2. Defendants engaged in adverse acts against Widi
in retaliation for Widi’s filing of administrative
grievances at FCI Ray Brook, in violation of Widi’s rights
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under the First Amendment, in that:
A. FCI Ray Brook defendants Glue, Matteau,
Salamy, Gaunyea, and Hudson (i) miscalculated Widi’s
custody score to keep him at a medium security level,
and (ii) effected Widi’s transfer to FCI Berlin;
B. FCI Berlin defendant Mullens refused to
correct Widi’s custody level calculation, in order to
keep Widi classified as a medium security inmate; and
C. FCI Berlin supervisors Tatum and Sullivan
were aware of the unconstitutional retaliatory actions
taken by Mullens and approved and authorized those
actions.
3. FCI Berlin officers and employees engaged in
adverse acts against Widi in retaliation for Widi’s filing
of administrative grievances at FCI Berlin, in violation of
Widi’s rights under the First Amendment, in that:
A. FCI Berlin defendant Mullens refused to
correct Widi’s custody level calculation, in order to
keep Widi classified as a medium security inmate; and
B. FCI Berlin supervisors Tatum and Sullivan
were aware of the unconstitutional retaliatory actions
taken by Mullens and approved and authorized those
actions.
Additionally, the Amended Complaint asserts new Federal
Tort Claims Act (“FTCA”) claims against the United States, and
new constitutional claims against more than twenty new
defendants identified by name, and twenty-two unnamed defendants
(“Does 1-22”), alleged to be liable under Bivens v. Six Unknown
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Fed. Narcotics Agents, 403 U.S. 388 (1971).3 In those claims,
Widi alleges violations of his due process right to refuse a
medical assessment, his Eighth Amendment right to adequate
medical care, and his Eighth Amendment right not to be subjected
to a malicious or sadistic use of excessive force. Those
supplemental claims – numbered Claims 4-14 in the Amended
Complaint -- are not restated herein.
Discussion
I. Preliminary Review of Amended Complaint (Doc. No. 21)
A. Privacy Act (Claim 1)
Widi has alleged in Claim 1 that the BOP’s use of allegedly
inaccurate records to assign him a custody score violated the
Privacy Act. Widi asserted a similar Privacy Act claim
(numbered as Claim 2 in the June 24 R&R), which this court
dismissed upon concluding that the BOP had exempted the relevant
records from the cited Privacy Act provisions, pursuant to 28
C.F.R. 16.97(j).
3Widi refers to 42 U.S.C. § 1983 in the Amended Complaint.
No individual acting under color of state law, however, is
alleged to have violated Widi’s rights. The court therefore
construes Widi’s claims as asserting each individual defendant’s
liability under Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388 (1971).
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In the Amended Complaint, Widi asserts that BOP has waived
the exemption as to Widi’s records. Such a waiver must be
express. See Martinez v. BOP, 444 F.3d 620, 624 (D.C. Cir.
2006). Stripped of legal conclusions, the Amended Complaint
fails to allege facts showing that BOP expressly waived the
exemption applicable to the records at issue. Accordingly, as
Widi has failed to state a claim for relief based on the Privacy
Act, Claim 1 (as numbered above) should be dismissed, and BOP
should be dropped as a defendant to this case.
B. Claim 14: Abuse of Process and Malicious Prosecution
Widi asserts that disciplinary proceedings instituted
against him constituted abuses of process and malicious
prosecutions, actionable as torts under the FTCA and as
violations of his Fifth Amendment right to due process. The
FTCA imposes liability upon the United States for certain
conduct by federal agents that would be deemed tortious under
state law if perpetrated against a private party. See 28 U.S.C.
§ 1346(b)(1). In New Hampshire, the elements of malicious
prosecution include favorable termination of the proceeding, and
the elements of abuse of process involve the misuse of court
power. See Ojo v. Lorenzo, 64 A.3d 974, 983, 164 N.H. 717, 727
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(2013) (favorable termination is element of malicious
prosecution); Tessier v. Rockefeller, 33 A.3d 1118, 1127, 162
N.H. 324, 335-36 (2011) (misuse of court power is element of
abuse of process). Widi has alleged that the prison
disciplinary proceedings at issue resulted in a finding of
guilty and sanctions; there is no suggestion that those
proceedings terminated favorably, or that any court was involved
in those prison proceedings. Accordingly, Widi cannot state an
FTCA claim based on abuse of process or malicious prosecution.
Widi’s due process claim in Claim 14 should be dismissed as
he has not pleaded any facts suggesting that the sanctions at
issue imposed any atypical or substantial hardship upon him, or
otherwise exceeded the scope of his sentence. See Sandin v.
Conner, 515 U.S. 472, 484 (1995) (inmate’s due process rights
not implicated where disciplinary sanction does not “impose[]
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life”). Accordingly, the
district judge should dismiss Claim 14 in the Amended Complaint.
C. Remaining Claims
Without prejudice to defendants’ ability to move to dismiss
any claim in the Amended Complaint, this court has directed
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service of the Amended Complaint on the United States and each
new named defendant, in an order issued on this date. That
order also provides defendants who have appeared in this case an
opportunity to respond to the Amended Complaint (doc. no. 21),
and grants plaintiff leave to amend the complaint to name the
defendants presently identified as Does 1-22 by March 4, 2014.
II. Motion to Dismiss (Doc. No. 20)
The motion to dismiss (doc. no. 20) relates to plaintiff’s
original complaint, which the Amended Complaint (doc. no. 21)
supersedes. The district judge should therefore deny the motion
to dismiss as moot, without prejudice to defendants’ ability to
move to dismiss the Amended Complaint on any basis.
Conclusion
For the foregoing reasons, the district judge should
dismiss the Privacy Act claim (Claim 1 above) and the Fifth
Amendment and FTCA malicious prosecution/abuse of process claims
(Claim 14 in the Amended Complaint (doc. no. 21)). The district
judge should further deny as moot defendants’ motion to dismiss
the original complaint (doc. no. 20), without prejudice to
defendants’ ability to move to dismiss the Amended Complaint
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(doc. no. 21).
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). 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).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 8, 2014
cc: David J. Widi, Jr.
T. David Plourde, Esq.
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