MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART PRELIMINARY REPORT AND RECOMMENDATION [ECF NO. 27]
THOMAS S. KLEEH, District Judge.
Pending before the Court is a Report and Recommendation ("R&R") by United States Magistrate Judge Michael J. Aloi. For the reasons discussed below, the Court adopts the R&R in part and rejects it in part.
I. PROCEDURAL HISTORY
On March 29, 2019, the Petitioner, Jesse Russell Simpson ("Petitioner"), filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (the "Petition"). ECF No. 1. At the time he filed the Petition, he was incarcerated at FCI Morgantown in Morgantown, West Virginia. He also filed a motion for leave to file additional pages and grounds and to prepare exhibits for the Petition, along with a motion for a preliminary injunction. ECF Nos. 2, 3. The Clerk of Court issued a Notice of Deficient Pleading, directing Petitioner to file a motion to proceed as a pauper with the necessary supporting documents or pay the filing fee within 21 days. ECF No. 4. Petitioner paid the filing fee on April 18, 2019. ECF No. 9.
On May 13, 2019, Petitioner moved to file additional pages and grounds to the Petition and "to return from leave." ECF No. 12. He also filed another motion for preliminary injunction and a motion for emergency injunction. ECF Nos. 13, 14. On October 17, 2019, the Magistrate Judge directed the Warden to show cause on the limited issue of whether Petitioner had lost any Good Conduct Time ("GCT") as a sanction for a disciplinary violation. ECF No. 16. The Warden responded on November 5, 2019. ECF No. 18.
On November 6, 2019, Petitioner filed a motion for extension of time to file related civil action(s) and a motion to submit additional information. ECF Nos. 19, 20. By separate orders, Petitioner's motion for an extension was denied, and his motion to submit additional information was construed as a motion to supplement and granted. ECF Nos. 21, 22. His motion for leave to file additional pages and prepare exhibits was construed as a motion to file excess pages and granted. ECF No. 24. His letter motions to have copies of court filings sent to his mother were denied. ECF No. 25. On December 3, 2019, the Magistrate Judge issued his R&R. ECF No. 27.
II. THE PETITION
The R&R organizes Petitioner's claims into five general grounds. Petitioner did not object to this characterization of his claims:
Ground One:
Petitioner alleges that while he was incarcerated at FCI Danbury in Danbury, Connecticut, certain Bureau of Prisons ("BOP") employees retaliated against him for exercising his First, Fifth, and Eighth Amendment rights. He argues that this stemmed from his revealing that he identified as LGBT and his joining a music program band comprised primarily of LGBT inmates.
Ground Two:
Petitioner alleges that after he arrived at the BOP's Oklahoma transfer center, BOP employees retaliated against him for exercising his First, Fifth, and Eighth Amendment rights. Specifically, he argues that they denied him a lower bunk, despite the fact that he had a medical pass for one; refused to issue him a pillow for over one week; and interfered with his right to file grievances.
Ground Three:
Petitioner alleges that when he arrived at FCI Morgantown, BOP employees denied him his First, Fifth, and Eighth Amendment rights. He argues that he experienced retaliation based on his coming out as LGBT, that staff seized his personal property without cause, and that he was denied requested medical care.
Ground Four:
Petitioner alleges that he is innocent of any and all violations included in Incident Report #3216326, issued at FCI Morgantown. He argues that the report is erroneous, capricious, retaliatory, and in violation of 28 C.F.R. § 541.1.
Ground Five:
Petitioner alleges that he is innocent of any and all violations included in Incident Report #3218313, issued at FCI Morgantown. He argues that the report is erroneous, vague, unsubstantiated, frivolous, capricious, and retaliatory. He argues that it omitted key information, violated 28 C.F.R. § 541.1, and was used to artificially raise his custody level.
Petitioner requests a sentence reduction, including immediate release; a vacating of his sentence; an expungement of his incident report; the return of his paperwork; restoration of his constitutional rights; release from the Special Housing Unit; daily access to the phone and email; termination of his SIS investigation; reinstatement of his programming assignments; 15 days of good time credit per month from December 2018 until the present time; and mental health treatment. ECF No. 1 at 8.1
III. THE R&R
The R&R recommends the following:
• That Petitioner's civil rights claims regarding the conditions of his confinement, alleged in Grounds One and Two, be dismissed with prejudice to be addressed in their respective district courts;2
• That Petitioner's claims of wrongful disciplinary actions and for an award of GCT should be denied and dismissed with prejudice because Petitioner was not sanctioned with the loss of GCT for either;
• That Petitioner's civil rights claims for conditions of confinement at FCI Morgantown, raised in Grounds Two, Three, and Five, should be denied without prejudice because Petitioner has a right to raise those claims in a Bivens civil rights action;
• That the Court direct the Warden to file a supplemental response to Petitioner's remaining § 2241 claim, raised in his November 6, 2019, supplement [ECF No. 1-4], regarding his entitlement under the First Step Act to 50 days of GCT from January 21, 2019, until the date he filed the Petition;
• That the Clerk be directed to send the applicable forms for the filing of a Bivens action in this district to Petitioner, to permit him to file his civil rights claims against the FCI Morgantown BOP staff;3
• That Petitioner's pending Motion to File Additional Pages and Grounds to Petition for Habeas Corpus and to Return from Leave [ECF No. 12] be denied as moot because it pertains to Petitioner's civil rights claims, which are not cognizable in a habeas corpus action;
• That Petitioner's pending Motion for Preliminary Injunction [ECF No. 3] be denied as moot; and
• That his Motion for Preliminary Injunction [ECF No. 13] and Motion for Emergency Injunction [ECF No. 14] be denied for lack of jurisdiction.
IV. STANDARD OF REVIEW
When reviewing a magistrate judge's R&R, the Court must review de novo only the portions to which an objection has been timely made. 28 U.S.C. § 636(b)(1)(C). Otherwise, "the Court may adopt, without explanation, any of the magistrate judge's recommendations" to which there are no objections. Dellarcirprete v. Gutierrez, 479 F.Supp.2d 600, 603-04 (N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions of a recommendation to which no objection has been made unless they are clearly erroneous. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Here, Petitioner has filed three objections:
(1) Petitioner objects to the finding that the Ground Four and Ground Five claims of wrongful disciplinary actions and for an award of GCT should be denied and dismissed with prejudice;4
(2) Petitioner objects to the requirement that he fill out and return the court-approved Bivens forms to the Clerk within 14 days; and
(3) Petitioner objects to the finding that the November 6, 2019, motion to supplement his petition was found to be related to the calculation of 54 days of GCT per year because it was actually filed to address the GCT that he was prevented from earning by participating in productive activities.
The Court reviews these portions of the R&R de novo and reviews the remainder of the R&R for clear error.
V. DISCUSSION
A. Objection #1
The R&R recommended that Petitioner's claims of wrongful disciplinary actions and for an award of GCT should be denied and dismissed with prejudice because Petitioner was not sanctioned with the loss of GCT for either. Petitioner objects to this and argues that they be dismissed without prejudice so that he can place his Bivens claim against the FCI Morgantown staff with this court. The Court agrees with Petitioner on this issue. Because this issue is a Bivens issue, the Court has no jurisdiction to dismiss it with prejudice based on the Government's affidavit.5 Therefore, the Court will REJECT the R&R's recommendation that it be dismissed with prejudice. The claims will be DISMISSED WITHOUT PREJUDICE.
B. Objection #2
The R&R directed the Clerk to send the applicable forms for the filing of a Bivens action to Petitioner, to permit him to file his civil rights claims against the FCI Morgantown BOP staff. It also provided that Petitioner shall fill out and return the forms to the Clerk of Court within 14 days of the service of the R&R. The R&R provides that if Petitioner fails to timely do so, his Bivens claims contained in his § 2241 Petition as to Grounds Three and Four will be given no consideration and will be recommended for dismissal.
In Petitioner's Objections, he writes that he received the R&R on Friday, December 6, 2019. As of December 7, 2019, he had still not received the Bivens forms from the Clerk. He argues that two weeks is not enough time for him to prepare the forms. For those reasons, the Court REJECTS the R&R as to this issue. The Clerk is DIRECTED to provide Petitioner with the appropriate Bivens forms. Petitioner is ORDERED to file the Bivens forms with the Court on or before April 17, 2020. If Petitioner fails to timely fill out and return the court-approved forms, his Bivens claims contained in his § 2241 Petition as to Grounds Three and Four will be given no consideration and will be dismissed upon final review of his remaining § 2241 claim.
C. Objection #3
The R&R recommends that the parties should brief the new issues raised in the November 6, 2019, motion to supplement. Petitioner objects to the R&R's characterization of those issues.6 Without ruling on whether the R&R properly described the issues, the Court agrees that the issues need to be briefed. The Court ADOPTS the R&R on this point. The Warden is ORDERED to respond, on or before April 10, 2020, to the "Motion to Submit Additional Information," docketed at ECF No. 20.
VI. CONCLUSION
After reviewing the remainder of the R&R and finding no clear error, the Court adopts all remaining portions of the R&R. Therefore, the R&R is adopted in part and rejected in part. The Court hereby ORDERS the following:
• The R&R [ECF No. 27] is ADOPTED IN PART and REJECTED IN PART, to the extent described above;
• Petitioner's Objections [ECF No. 29] are ADOPTED IN PART and REJECTED IN PART, to the extent described above;
• The Motion for Preliminary Injunction Granting Access to Legal Materials [ECF No. 3] is DENIED;
• The Motion to File Additional Pages and Grounds to Petition for Habeas Corpus and to Return from Leave [ECF No. 12] is DENIED;
• The Motion for Preliminary Injunction [ECF No. 13] is DENIED;
• The Motion for Emergency Injunction [ECF No. 14] is DENIED;
• The Clerk is DIRECTED to provide Petitioner with the appropriate Bivens forms;
• Petitioner is ORDERED to file the forms on or before April 17, 2020, and if he fails to do so, his Bivens claims contained in his § 2241 Petitioner in Grounds Three and Four will be given no consideration and will be dismissed upon final review of his remaining § 2241 claim;
• The only remaining § 2241 claim relates to the November 6, 2019, filing; and
• The Warden is ORDERED to respond, on or before April 10, 2020, to the "Motion to Submit Additional information," docketed at ECF No. 20.
It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum Opinion and Order to counsel of record and the pro se Petitioner, via certified mail, return receipt requested.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF WEST VIRGINIA
INSTRUCTIONS FOR FILING A FEDERAL CIVIL RIGHTS COMPLAINT (BIVENS ACTION)
This packet is to be used by pro se prisoners filing a civil rights suit pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). A Bivens complaint may be filed by a FEDERAL prisoner, against a person or persons acting in his or her individual capacity, under color of FEDERAL authority, for violations of a prisoner's constitutional rights. (LR PL 27.1)
Do NOT use this form for anything other than a FEDERAL civil rights complaint filed under Bivens. Separate forms are available for other actions. The Clerk of Court can send you a copy upon request, or one should be available in the law library of your institution.
GENERAL INFORMATION
THE RIGHT COURT AND THE RIGHT DEFENDANTS
You may file your federal civil rights complaint in the United States District Court for the Northern District of West Virginia ONLY if one or more of the defendants is located in the Northern District, or if the events about which you are complaining occurred in the Northern District of West Virginia.
EXHAUSTION
You may not bring an action challenging prison conditions UNTIL YOU HAVE EXHAUSTED ALL AVAILABLE ADMINISTRATIVE REMEDIES, including any grievance system. See 42 U.S.C. § 1997e(a).
SCREENING/DISMISSAL
The Court is required to screen your complaint and to dismiss your case at any time if it determines the following:
1. You failed to exhaust all administrative remedies; or
2. Your case is frivolous, or malicious, or fails to state a claim on which relief may be granted, or seeks money from a defendant who is immune from such relief.
THREE-STRIKES RULE
If, while incarcerated or detained in any facility, you have filed three or more civil actions or appeals in federal court which were dismissed, either by a district court or an appellate court, as being frivolous, malicious, or failing to state a claim, you are prohibited from bringing another civil action in forma pauperis.
COMPENSATORY DAMAGES
If your case is allowed to proceed and you are awarded compensatory damages against a federal officer, before payment of any compensatory damages, the government will attempt to notify victims of the crime for which you were convicted, because you must first pay all pending restitution orders before any part of the award goes to you.
BASIC GUIDELINES
When filing forms and documents with the Court, you must follow these guidelines:
—Complete all forms as thoroughly as possible
—Use letter size paper only (8 ½ × 11)
—Sign all documents
—Send the original
—Do not use pencil. Either type or print neatly using black or blue pens only
—Do not bind or staple documents
—Write only on the fronts of documents, do not write on the backs of documents
—Number all additional pages
FORMS AND INSTRUCTIONS FOR FILING DOCUMENTS
To file a civil action, you must use the forms provided by the Court and submit either: (a) the Complaint and filing fee of $400.00 to be paid by money order or U.S. Treasury check, OR (b) the Complaint and in forma pauperis forms, which include: Application and Affidavit to Proceed Without Prepayment of Fees (Attachment B), Consent to Collection of Fees from Trust Account (Attachment C), and the Prisoner Trust Account Report (Attachment D). FAILURE TO SUBMIT ALL OF THE REQUIRED FORMS WILL RESULT IN DISMISSAL OF YOUR COMPLAINT BY THE COURT.
Directions for filing a complaint are listed below and all necessary forms are included. Please read all of the following instructions carefully before completing ANY of the attached forms. PLEASE ALSO READ THE LOCAL RULES OF PRISONER LITIGATION.
THE COMPLAINT (Attachment A). Instructions for Completing the Complaint Form:
a. Submit one original complaint to the Court. Keep one exact copy of the complaint for your records. If you do not keep a copy of your complaint and later request a copy from the Court, you will be required to pay a copying fee of $0.50 per page.
b. Forms from other districts must not be submitted.
c. Do not write on the back of the complaint forms. If you need more space, use additional sheets of paper not to exceed a total of five (5) typed pages or ten (10) neatly printed pages unless accompanied by a Motion for Leave to file excess pages. (LR PL 3.4.4). Additional pages must be numbered. Your complaint and all other pleadings/documents must be in English and must be neatly printed or typed. (LR PL 3.4.1).
d. DEFENDANTS: You must provide the Clerk of Court with the complete name and address of each defendant. If the first name is unknown, provide an initial. Otherwise, the Clerk cannot prepare a summons for issuance of service of process by the Marshal. See Rule 4 of the Federal Rules of Civil Procedure.
e. STATEMENT OF CLAIM: You are required to give facts regarding your complaint. When your complaint involves more than one incident, each incident should be identified as a separate count. Each incident must include appropriate supporting facts and must be clearly described, including the relevant times, dates and locations. Each incident description must also clearly identify the relevant defendant and describe what the defendant's role was in the incident. You must explain what each defendant did to violate your civil rights. All of the claims described in your complaint must arise out of the same set of facts. CLAIMS ARISING OUT OF DIFFERENT SETS OF FACTS MUST BE PRESENTED AND FILED IN SEPARATE COMPLAINTS WHICH REQUIRE SEPARATE FILING FEES. THIS COMPLAINT SHOULD NOT CONTAIN LEGAL ARGUMENTS OR CITATIONS.
f. RELIEF REQUESTED: State what you want the Court to do for you. Do not make legal arguments.
g. VERIFICATION: You should make sure that all answers are true and correct. You must declare under "Penalty of Perjury" that the information contained in your complaint is true and accurate. This is done by signing the Complaint form on p. 16.
h. Note: under RULE 11, Federal Rules of Civil Procedure: only the signature of a pro se party on pleadings will be acceptable to the Court.
i. INSTRUCTIONS FOR A COMPLAINT WITH MORE THAN ONE PLAINTIFF: If you and any other plaintiff(s) have the same claims, events, and defendants to be stated in your complaint, each plaintiff must file a separate complaint.
IN FORMA PAUPERIS FORMS (Attachments B, C, D)
To file an application to proceed without prepayment of fees, you must complete and submit the following forms: Application and Affidavit to Proceed Without Prepayment of Fees (Attachment B), Consent to Collection of Fees from Trust Account (Attachment C), and the Prisoner Trust Account Report (Attachment D) with ledger sheets from your prisoner trust account which reflect your account's activity for the past six months.
After completing the complaint and all applicable forms, proofread them to ensure compliance with all instructions. Return the completed forms and the correct number of copies to the appropriate point of holding court in the County where the events about which you claim occurred. The West Virginia counties for each point of holding court are listed below.
Clerk, U.S. District Court Clerk, U.S. District Court
PO Box 2857 PO Box 471
Clarksburg, WV 26302 Wheeling, WV 26003
Attn: Inmate Litigation Clerk Attn: Inmate Litigation Clerk
Pleasants, Ritchie, Calhoun, Gilmer, Hancock, Brooke, Ohio,
Braxton, Doddridge, Harrison, Marshall, Wetzel and
Marion, Monongalia, Taylor and Tyler Counties
Preston Counties
Clerk, U.S. District Court Clerk, U.S. District Court
217 W. King St., Room 102 PO Box 1518
Martinsburg, WV 25401 Elkins, WV 26241
Attn: Inmate Litigation Clerk Attn: Inmate Litigation Clerk
Mineral, Hampshire, Morgan, Lewis, Upshur, Webster,
Berkeley and Jefferson Counties Pocahontas, Randolph,
Pendleton, Barbour, Tucker,
Grant and Hardy Counties
FILING DOCUMENTS AFTER THE DEFENDANT(S) HAVE ANSWERED
Documents filed with the Clerk of Court after the defendant(s) have answered must be filed with the Court in writing in the form of a pleading, for example: motion, notice, memorandum, etc.
You must serve defense counsel or the defendant(s), if not represented by counsel, with a copy of every pleading, letter, or other document submitted for consideration by the Court. The original of all documents filed with the Clerk should have a "Certificate of Service" (Attachment E).
The Court may return any document submitted to the Clerk of Court for filing that does not bear a proper Certificate of Service. You must sign all papers (pleadings, letters, motions, or other documents) relating to your case and must state the case number. All documents and correspondence submitted to the Clerk of Court should be on letter-size paper (8 ½ × 11 inches). Please do not use legal-size (8 ½ × 14 inches) paper.
IMPORTANT ADDITIONAL INFORMATION
1. IF YOU DO NOT KEEP THE COURT ADVISED OF YOUR CURRENT ADDRESS, YOUR CASE WILL BE DISMISSED BY THE COURT.
2. It is improper to communicate directly with Judges or Magistrate Judges concerning matters that may become a subject in their Court.
3. The Clerk, Judges, Law Clerks, and Magistrate Judges are prohibited from giving legal advice to litigants.
Thank you in advance for your cooperation regarding these instructions.
AT THE DIRECTION OF THE COURT
Cheryl Dean Riley, Clerk
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
Attachment A
