Thomas v. FCI Berlin, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Oliver Thomas
v. Civil No. 16-cv-012-SM
Joey Paul and M. Vigneault1
REPORT AND RECOMMENDATION
Plaintiff Oliver Thomas, an inmate currently held in
solitary confinement in the Special Housing Unit (“SHU”) at the
Federal Correctional Institution in Berlin, New Hampshire (“FCI-
Berlin”), has asserted claims of violations of his rights
relating to his working conditions in the prison laundry, and
his loss of that job in 2014. On August 10, 2016, the
magistrate judge issued a Report and Recommendation (doc. no.
23) (“August 10 R&R”), recommending that the district judge deny
plaintiff Oliver Thomas’s request for a preliminary injunction,
which was set forth in Document Nos. 12, 18, and 19.
Before the court are two recent filings docketed in this
case since the issuance of the August 10 R&R: Thomas’s August
17, 2016, letter to the presiding judge (doc. no. 28), which the
1The remaining defendants named in the complaint (doc. no.
1) have been dropped as parties, and all claims against them
have been dismissed. See July 13, 2016, Order (doc. no. 11).
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court construes as a motion (hereinafter “Motion”), through
which Thomas seeks to supplement the record relating to the
claims underlying his request for a preliminary injunction; and
Thomas’s objection (doc. no. 30) to the August 10 R&R. The
district judge has referred the Motion (doc. no. 28) to the
magistrate judge for a report and recommendation as to
disposition.2 See Aug. 23, 2016, Order. To simplify, clarify,
and correct the record in this case, the undersigned magistrate
judge has issued an Order this date vacating the August 10 R&R,
and substituting this R&R, which similarly recommends denial of
Thomas’s request for injunctive relief, as set forth below.
Background
Three types of Bivens claims for damages have been allowed
to proceed against the only defendants remaining in this case,
Joey Paul and M. Vigneault: (1) claims asserting violations of
plaintiff’s Fifth Amendment right to equal protection relating
to Thomas’s prison laundry job; (2) claims that Paul and
Vigneault retaliated against Thomas for exercising his First
2Thomas’s renewed request for counsel, set forth in his
Objection to the August 10 R&R (doc. no. 30) is the subject of a
separate Order issued this date.
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Amendment right to grieve issues of race discrimination relating
to the prison laundry job; and (3) claims of First Amendment
violations, asserting that Paul and Vigneault threatened to fire
plaintiff unless he lied to inspectors and auditors about
conditions and practices in the prison laundry. See generally
May 16, 2016, R&R (doc. no. 5), approved by July 13, 2016, Order
(doc. no. 11).
The claims upon which plaintiff seeks preliminary
injunctive relief are new claims, not yet added to this case,
alleging that third party prison officials have retaliated
against plaintiff for maintaining this lawsuit. See, e.g., Doc.
Nos. 18-19 and 28. Thomas seeks to enjoin those prison
officials from keeping Thomas in SHU at FCI-Berlin and from
transferring him to a higher security prison.3 See Doc. Nos. 18,
30. Plaintiff alleges that disciplinary charges against him,
which resulted in a finding of guilty and a loss of good time,
were false, and that the proceedings on those charges, his
3In the August 10 R&R, at p.2, n.2, this court concluded from
the record then before the court that plaintiff had been
released from solitary confinement. It is now clear from the
record, as supplemented by Document Nos. 28 and 30, that
plaintiff remains in administrative detention in SHU and has
been subject to solitary confinement conditions, including
limited law library access and only one hour of out-of-cell time
per day, since June 28, 2016. See Doc. No. 30, at 1-2.
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continued placement in SHU in solitary confinement conditions,
and the threatened prison transfer, are actions taken in
retaliation for his refusal to drop this case. See August 10
R&R, at 2. Plaintiff seeks to enjoin the threatened transfer
and his continued confinement in SHU, so that he may be released
into the general population at FCI-Berlin while this lawsuit is
pending. See Doc. No. 28; Doc. No. 30, at 8.
Preliminary Injunction Standard
To obtain a preliminary injunction, a plaintiff must
establish a likelihood of success on the merits, irreparable
harm in the absence of preliminary relief, a showing that the
balance of equities tips in plaintiff’s favor, and a showing
that an injunction is in the public interest. Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015). “‘[T]he sine qua non of this
. . . inquiry is likelihood of success on the merits: if the
moving party cannot demonstrate’” that likelihood, “‘the
remaining factors become matters of idle curiosity.’” Sindicato
Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 10 (1st
Cir. 2012) (citation omitted). The burden of proof on a motion
for preliminary injunction is on the movant. See Esso Std. Oil
Co. v. Monroig–Zayas, 445 F.3d 13, 18 (2006).
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Discussion
None of the claims upon which plaintiff seeks preliminary
injunctive relief are properly added to this case at this time.
An inmate cannot proceed on a Bivens claims relating to
retaliatory disciplinary proceedings and transfers unless he
first exhausts all available administrative remedies. See 42
U.S.C. § 1997e(a) (“PLRA”); Acosta v. U.S. Marshals Serv., 445
F.3d 509, 514 (1st Cir. 2006); Medina-Claudio v. Rodríguez-
Mateo, 292 F.3d 31, 36 (1st Cir. 2002); Oladukun v. Winn, No.
04-40198-RWZ, 2005 U.S. Dist. LEXIS 17046, at *9, 2005 WL
1972560 (D. Mass. Aug. 16, 2005); see also Porter v. Nussle, 534
U.S. 516, 532 (2002) (“the PLRA’s exhaustion requirement applies
to all inmate suits about prison life”). Claims added to a
lawsuit before the inmate has exhausted available remedies for
such claims are subject to dismissal, and a motion for leave to
supplement an ongoing case with such claims is properly denied.
See Acosta, 445 F.3d at 514; Medina-Claudio, 292 F.3d at 36.
Plaintiff has not exhausted his administrative remedies on any
of the retaliation claims upon which he might base his requests
for injunctive relief. See Doc. No. 30, at 4-6; Decl. of Cheryl
Magnusson ¶ 8 (doc. no. 21, at 2).
The PLRA admits of only one exception to the exhaustion
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requirement, in that “[a] prisoner need not exhaust remedies if
they are not ‘available.’” Ross v. Blake, 136 S. Ct. 1850, 1855
(2016) (citing PLRA). Plaintiff has not asserted that Federal
Bureau of Prisons (“BOP”) administrative remedies are
unavailable. Indeed, plaintiff has asserted that he is in the
process of exhausting BOP remedies, but anticipates that the
process may take up to two years to complete, during which he
anticipates he may be transferred to a high security facility.
See Doc. No. 30, at 4-6. The mere fact that plaintiff may be
transferred to a new BOP facility does not render the BOP
grievance process unavailable to him. See Mowry v. Knight, No.
CV 13-2053-PHX-SMM (MEA), 2014 U.S. Dist. LEXIS 169333, at *23,
2014 WL 6885360, at *7 (D. Ariz. Dec. 8, 2014) (transfer to
different prison or unit within same department of corrections
does not generally render grievance procedure unavailable).
Nothing in the record provides grounds for finding the PLRA
exhaustion requirement to be inapplicable to plaintiff’s
circumstances.
Plaintiff has failed to show a likelihood of success on the
potential retaliation claims underlying his request for
preliminary injunctive relief, in that those claims have not
been added to this case, and until plaintiff exhausts BOP
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administrative remedies, those claims should not be allowed to
proceed. Accordingly, plaintiff’s request for a preliminary
injunction should be denied.
Conclusion
The district judge should deny plaintiff’s request for
preliminary injunctive relief, seeking to stop a prison transfer
and to obtain release from SHU, as set forth in Document Nos.
12, 18, 19, 28, and 30. 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 Garayalde-Rijos v. Mun. of
Carolina, 747 F.3d 15, 21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
September 21, 2016
cc: Oliver Thomas, pro se
Terry Ollila, Esq.
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