Opinion
CIVIL ACTION No. 99-3118-GTV
September 16, 2003
MEMORANDUM AND ORDER
Plaintiff Wayne Mitchell, proceeding pro se and in forma pauperis, brings this Bivens action pursuant to 28 U.S.C. § 1331. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff, formerly a prisoner at the United States Penitentiary in Leavenworth, Kansas ("USP Leavenworth"), alleges that Defendants Oscar Acosta and Steve Lacy, two Special Investigative Service (SIS) Lieutenants at USP Leavenworth, violated Plaintiffs First Amendment rights. Specifically, Plaintiff claims that Defendants placed him in administrative detention and caused him to be transferred to another federal prison for filing habeas challenges and administrative grievances. As a result of Defendants' alleged acts of retaliation, Plaintiff also claims his 28 U.S.C. § 2255 litigation in another federal court was hindered and ultimately dismissed under the applicable statute of limitations. Plaintiff requests various forms of monetary, injunctive and declaratory relief.
The case is before the court on Defendants' Motion to Dismiss or in the Alternative. Motion for Summary Judgment (Doc. 45) and Plaintiffs Motion to Submit Documents in Camera (Doc. 52). Because the parties have submitted and the court has considered materials outside the pleadings, Defendants' motion will be treated as a Rule 56 motion for summary judgment. See Fed.R.Civ.P. 12(b)(6); Whitesel v. Sengenberger, 222 F.3d 861, 865-66 (10th Cir. 2000). For the reasons stated below, Defendants' motion for summary judgment (Doc. 45) is granted. The court also grants Plaintiffs motion to submit two affidavits for in camera review (Doc. 52) and has considered them in reaching its decision.
I. FACTUAL BACKGROUND A. Parties' Legal Arguments Concerning the Facts of the Case
As a preliminary matter, Defendants argue that all of their submitted facts should be accepted as uncontroverted because Plaintiff failed to properly dispute them. D. Kan. R 56.1(a) states, "All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." While a court will liberally construe a pro se litigant's pleadings, Haines v. Kerner, 404 U.S. 519, 520 (1972), a pro se litigant is still expected to follow fundamental procedural rules, Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). To the extent Plaintiff has not controverted Defendants' statements of fact, those facts are deemed admitted.
B. Facts of the Case
The court now turns to the facts of the case. The following facts are taken from the summary judgement record and are either uncontroverted or viewed in the light most favorable to Plaintiffs case. Immaterial facts and facts not properly supported by the record are omitted.
Plaintiff was incarcerated at USP Leavenworth from March 17, 1995, until September 29, 1997. During this period, Plaintiff was placed in the Special Housing Unit (SHU) on five occasions, but only the last two detentions are germane to his complaint. Defendants were SIS Lieutenants at USP Leavenworth at the time of the incidents giving rise to this action.
Bureau of Prison records indicate that during the relevant time periods in Plaintiffs complaint, Plaintiff was a validated member of the Latin Kings. The Latin Kings are one of the five designated "disruptive groups" that present special management issues for prison staff. Members of these gangs are subject to greater scrutiny than other inmates in the prison system.
Plaintiff was removed from the general population at USP Leavenworth from August 5, 1996 to October 2, 1996, and placed in the SHU on administrative detention status. Prison records indicate Plaintiff was placed in the SHU because Plaintiff and another inmate assaulted a prisoner on July 27, 1996. Plaintiff maintains that on August 4, Defendant Acosta told him "that if he did not provide information, he would be put in segregation and that he (Acosta), would make it difficult for Plaintiff to continue his litigation." On September 12, 1996, during this detention period, Plaintiff filed a habeas corpus petition. On October 17, 1996, the petition was dismissed as moot after Plaintiff was released from administrative detention on October 2. Plaintiff asserts that after he was released from segregation on October 2, Defendant Acosta told Plaintiff "not to think [Plaintiff] did anything slick, because he had a countermove for him."
Plaintiff later filed an action for reconsideration on October 25, 1996, but the Honorable Richard D. Rogers dismissed the action on November 5, 1996. Plaintiff also filed a second habeas corpus petition on December 23, 1996. Judge Rogers dismissed the petition on March 17, 1997, because Plaintiff failed to exhaust his administrative remedies.
Plaintiff was again placed in the SHU on October 17, 1996. Defendant Lacy filed a SIS report on November 26, 1996, explaining the reasons for Plaintiffs status. The report revealed that after Plaintiffs October 2 release from administrative detention, prison officials began receiving information from the general population that Plaintiff was not welcome back into the general population, that he faced the possibility of being assaulted, and that it would be best if he were transferred to another prison. Defendants claim that based on the suggestions received during the investigation, Plaintiff was placed back into the SHU on October 17 for his own protection and to maintain the security of the prison. Moreover, a "close supervision transfer" was recommended. Plaintiff maintains that Defendant Lacy placed him in segregation under the guise of "investigation" and that Plaintiff was denied access to the law library and other legal necessities. Plaintiff also argues the November 26 SIS report was designed only to justify his initial administrative detention, to continue his confinement in retaliation for filing a habeas corpus petition, and to recommend Plaintiffs transfer.
On January 7, 1997, while the Plaintiff was still in the SHU, the staff at USP Leavenworth prepared a request for Plaintiffs transfer that was signed by the Warden. The Acting Regional Director denied the transfer request on February 21, 1997. The Director's memorandum indicated that the request for transfer, based on the "suggestions" from the general population, did not contain enough information to support the need for transfer. The transfer request, however, could be resubmitted if additional information developed to warrant Plaintiffs transfer. Plaintiff claims that he should have been released from segregation at this point, but that Defendants resubmitted false information implicating Plaintiff in an incident that occurred on March 2, 1997.
An SIS report from April 1, 1997, states that an assault occurred in the recreation yard at USP Leavenworth on March 2, 1997. An investigation disclosed that the fight occurred between the Latin Kings and other Hispanic inmates. The investigation also revealed a power struggle within the Latin Kings. As a result of the incident, another request for Plaintiffs transfer was submitted to the Regional Director on April 10, 1997. Even though Plaintiff was still housed in the SHU at the time of the March 2 incident, the memorandum referenced Plaintiffs connection to the fight. After receiving this information, the Regional Director approved Plaintiffs transfer. Plaintiff eventually was transferred to the United States Penitentiary at Marion, Illinois ("USP Marion") on September 29, 1997. Plaintiff contends that the April SIS report was another act of Defendants' retaliation "to justify another continuation of confinement and again, a request for administrative transfer." Plaintiff argues that Defendants knew if they did not connect him to the March 2 incident, he would have to be released back into the general population.
Finally, Plaintiff argues that "Defendants [sic] retaliatory actions ultimately caused Plaintiff to loose [sic] standing in his litigation." In support of this claim, Plaintiff maintains that his § 2255 motion in another federal court was dismissed as time barred under the applicable one-year statute of limitations.
In summary, Plaintiff claims that in retaliation for filing habeas petitions and filing administrative grievances, Defendants filed two false SIS reports to keep him in detention, caused him to be transferred, and hindered his legal activities. Plaintiff seeks: 1) the cost of the lost property he was not allowed to keep after transferring to USP Marion; 2) a transfer to a more appropriate prison; 3) his costs for the amount he has spent on postage and copying legal documents; 4) expungement of all misleading and retaliatory information from his personal files; and 5) a declaration that Defendants' actions caused Plaintiff to be time barred in his § 2255 litigation.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
III. DISCUSSION A. Official Capacity Claims
It appears from the pleadings that Plaintiff has sued Defendants in both their individual and official capacities. A suit against federal employees in their official capacities is construed as an action against the United States. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citations omitted). The United States is immune from suits except to the extent that it waives its immunity. United States v. Orleans, 425 U.S. 807, 814 (1976). The United States has not waived its immunity with respect toBivens actions. See Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001) ("There is no such animal as a Bivens suit against a public official tortfeaser in his or her official capacity."); Chapoose v. Hodel, 831 F.2d 931, 935 (10th Cir. 1987). The complaint form Plaintiff used to file this action alleges that Defendants acted in their official capacity. Plaintiff, however, does state in his summary judgment response that he is suing Defendants as individuals. Therefore, to the extent Plaintiff is suing Defendants in their official capacity, Plaintiffs claims must fail because they are treated as actions against the United States. The court will address Plaintiffs claims against Defendants in their individual capacities.B. Statute of Limitations
Many of the acts Plaintiff complains of occurred more than two years before March 29, 1999, the date this lawsuit was filed. "Bivens actions are subject to the general personal injury statute of the state where the action arose." Logan v. United States, No. 02-4181-JAR, 2003 U.S. Dist. LEXIS 12513, at *7 (D. Kan. July 17, 2003) (citing Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994)). "In Kansas, the statute of limitations for such claims is two years." Id. (citing K.S.A. § 60-513(a)(4)). Although state law provides the applicable statute of limitations period, federal law "controls the issue of when a federal cause of action accrues." Indus. Constructors Corp., 15 F.3d at 968-69 (citing Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993);Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir. 1987)). "The statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action." Id. at 969 (citations omitted). "A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence." Id. (citing Ohio v. Peterson. Lowrv. Rail. Barber Ross, 651 F.2d 687, 692 (10th Cir. 1981)). Plaintiff knew or had reason to know of his injury when he was placed in administrative detention on two occasions in 1996. Plaintiffs alleged acts of retaliation which occurred prior to March 29, 1997, are time barred under the applicable statute of limitations.
Plaintiffs argument that the statute of limitations does not bar his claims prior to March 29, 1997, is that "[t]he last act or injury stemming from [D]efendants' retaliatory reports" occurred on January 22, 1998, when his habeas litigation was dismissed. Plaintiff also contends his transfer to UPS Marion on September 29, 1997, resulted from Defendants' retaliatory reports. To the extent Plaintiffs argument can be construed as an attempt to take advantage of the continuing violations doctrine, his argument fails.
Few attempts to invoke the continuing violations doctrine are successful and this court has previously declined to apply the doctrine to § 1983 claims. McCormick v. Farrar, No. 02-2037-GTV, 2002 U.S. Dist. LEXIS 5066, at *12-13 (D. Kan Mar. 20, 2003) (stating that "[t]he Tenth Circuit has indicated that the continuous violation doctrine is not applicable to § 1983 claims"); see also Konigsberg v. Lefevre, 267 F. Supp.2d 255 (N.D.N.Y. 2003) ("A party cannot invoke the doctrine to avoid statute of limitations problems when he knew after each allegedly wrongful act that it was actionable, but chose not to file federal claims regarding them within the limitations period."). Again, Plaintiff knew of the original acts of Defendants' alleged retaliation when he was placed in segregation two times in 1996. The court declines to anchor those events to his eventual transfer to UPS Marion and to the dismissal of Plaintiffs habeas petition. See Ocean Acres Ltd. P'ship v. Dare County Bd. of Health, 707 F.2d 103, 106 (4th Cir. 1983) ("A continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.").
The court concludes that Plaintiff is time barred from asserting his retaliation claims that stem from: 1) his placement in segregation on August 5, 1996, and October 17, 1996; 2) the November 26, 1996, SIS report justifying Plaintiffs detention; 3) the two habeas petitions he filed on September 12, 1996, and December 23, 1996; and 4) all administrative grievances he filed before March 29, 1997. The court will now consider Plaintiffs remaining claims based on the events after March 29, 1997.
C. Remaining Retaliation Claims 1. Retaliatory Transfer
Construing Plaintiffs complaint liberally, as the court must, Plaintiff appears to allege that Defendants' retaliatory acts resulted in his transfer to USP Marion. Plaintiffs complaint requests a transfer to a more appropriate prison and the value of the property he was not authorized to keep at USP Marion. For the following reasons, Plaintiffs claim is dismissed and his requests for relief are denied."Prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his right of access to the courts." Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990). "While a prisoner enjoys no constitutional right to remain in a particular institution . . . prison officials do not have the discretion to punish an inmate for exercising his first amendment rights by transferring him to a different institution." Frazier v. Dubois, 922 F.2d 560, 561-62 (10th Cir. 1990) (citing Murphy v. Mo. Dep't. of Corr., 769 F.2d 502, 503 (8th Cir. 1985)). Plaintiff, however, must still demonstrate "that `but for' the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place." Smith, 899 F.2d at 949-50. "Mere allegations of constitutional retaliation will not suffice; plaintiffs must rather allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier. 922 F.2d at 562 n. 1.
The uncontroverted evidence presented by Defendants shows Plaintiff was known as an "enforcer" in the Latin Kings. As a member of this gang, he was involved in an assault on another prisoner on July 26, 1996, and placed in detention. Shortly afterwards, prison officials received suggestions from the general population that Plaintiff would not be safe if he returned to the general population. Prison records also point to Plaintiffs connection with the March 2, 1997, prison assault between the Latin Kings and another Hispanic group. The records reveal that although Plaintiff was in SHU at the time of the recreation yard incident, Plaintiff and another inmate gave an order that led to the fight. Prison officials also received information of dissension among Latin King members. Based on all of this information and an interest in avoiding any future conflicts, the Regional Director approved Plaintiffs transfer.
Plaintiff has not presented evidence from which a jury could reasonably find that Defendants' alleged retaliatory motives were the "but for" cause of their actions. Instead, the record shows that based on Plaintiffs involvement with the Latin Kings and the occurrence of two incidents at UPS Leavenworth, Plaintiff was transferred to avoid any future altercations. In Johnson v. Bureau of Prisons, a federal prisoner brought a Bivens action claiming "that defendant kept him in administrative segregation, and possibly transferred him . . . in retaliation for the filing of grievances." No. 99-3239-KHV, 2000 U.S. Dist. LEXIS, at *16 (D. Kan. April 4, 2000). The defendants produced evidence "that after first placing plaintiff in segregation for an investigation, prison officials received information that he would not be safe in the general population. Based on this information they decided to keep plaintiff in administrative segregation and ultimately recommend a transfer." Id. at *17. The court ruled that "[p]lacement in segregation to protect an inmate from other inmates is a reasonable means of meeting the legitimate penological interest of ensuring inmate safety." Id. at *17-18. The court concludes that Plaintiffs transfer to USP Marion was a "reasonable means of meeting the legitimate penological interest" of securing Plaintiffs safety and avoiding any potential disturbances as a result of Plaintiffs presence at USP Leavenworth. See Marchesani v. McCune, 531 F.2d 459, 462 (10th Cir. 1976) (stating that "the control and management of federal penal institutions lies within the sound discretion of the responsible administrative agency").
Additionally, Plaintiffs allegations of retaliatory transfer, even if true, do not allege the required personal participation to state a claim. Bivens liability requires direct, personal participation. See Bennet v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (explaining that "[p]ersonal participation is an essential allegation in a section 1983 claim"); Grullon v. Reid, No. 97 Civ. 7616 (RWS), 1999 U.S. Dist. LEXIS 9407, at *23 (S.D.N.Y. June 24, 1999) (stating that the plaintiff has "the burden of establishing in a Bivens Action, as to each defendant, specific facts that show the defendants' personal participation in the alleged constitutional violation"); Mangino v. Department of the Army, No. 94-2067, 1994 U.S. Dist. LEXIS 12313, at *21-22 (D. Kan. Aug. 24, 1994) ("Only federal officials who actually participated in alleged violations are subject to a Bivens-type suit").
The only personal participation by Defendants Acosta and Lacy supported by the record occurred in 1996. Defendant Acosta signed the administrative detention orders for both the August 5, 1996, and October 17, 1996 detentions. Defendant Lacy authored the November 6, 1996, SIS report justifying those detentions and recommending a transfer for Plaintiff that was later denied. Although these actions support a claim of personal participation by Defendants with respect to those particular acts, again, they are time barred by the two-year statute of limitations.
Plaintiff has not provided any evidence of Defendants' personal participation in the events that are not barred by the two-year statute of limitation period. The April SIS report connecting Plaintiff to the March 2 fight and recommending Plaintiffs transfer was not authored by Defendants Acosta or Lacy. Plaintiff argues that Defendants "resubmitted false charges or misleading information to their superiors, involving or somehow implicating Plaintiff" in the March 2 incident. These conclusory allegations of participation, without more specific instances of alleged misconduct, are insufficient to withstand a motion for summary judgment. Accordingly, Plaintiffs retaliation claim based on his transfer and request to be transferred to another prison is dismissed.
2. Lost Property Claim
Plaintiff makes a claim for "the cost of the lost property" he was not authorized to keep after transferring to USP Marion. Defendants stated in their answers that "Plaintiff has failed to cite a correct jurisdictional statute . . . concerning his claim for lost property." It does not appear from Defendants' motion for summary judgment or reply memorandum that Defendants addressed this claim for relief any further. The court will now address this claim.
Plaintiff does have a right to mail his unauthorized property to the location of his choice. See 28 C.F.R. § 553.14(b) (2003) (stating that "[i]f the inmate's personal property is not authorized for retention by the receiving institution, staff at the receiving institution shall arrange for the inmate's excess personal property to be mailed to a non-Bureau destination of the inmate's choice"); Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991) (holding that no due process violation exists if property is sent to the location of the prisoner's choice). Plaintiff, however, does not make any allegations that he was not allowed to take advantage of this provision.
Furthermore, the court determines that Plaintiffs claim for lost property should be brought under the provisions of the Federal Tort Claims Act. See Bostic v. United States, No. 86-3226, 1986 U.S. Dist. LEXIS 18998, at *1 (D. Kan. Oct. 16, 1986) (stating that "the proper remedy for lost property is by filing an administrative tort claim under the Federal Tort Claims Act"). "Any potential claim the plaintiff may allege under the FTCA, however, is barred because the exhaustion of administrative remedies is a jurisdictional prerequisite to bringing such a claim."Velayo v. United States, No. 01-2277-JWL, 2001 U.S. Dist. LEXIS 23960, at *4 (D. Kan. Oct. 3, 2001) (citing 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 110 (1993); Pipkin v. United States Postal Serv., 951 F.2d 272, 273 (10th Cir. 1991)). Plaintiff has not shown that he exhausted his remedies by presenting a lost property claim to the appropriate federal agency as required under the FTCA. Plaintiffs claim for lost property is dismissed. To the extent, if any, that Plaintiff attempts to proceed for the recovery of lost property in a Bivens action under 28 U.S.C. § 1331, the court concludes the action for relief must be dismissed as well. Plaintiff has not presented evidence showing that he exhausted his administrative remedies for this claim.
3. Access to the Courts
Finally, Plaintiff claims Defendants' retaliatory actions ultimately caused him to lose standing in his § 2255 habeas corpus litigation. In support of this contention, Plaintiff attached to his complaint the front page of a docket entry from the United States District Court for the Northern District of Illinois. The entry, dated January 22, 1998, states that in the case of Wayne Mitchell v. United States of America, case number 97 C 9009, Plaintiffs "motion under 28 U.S.C. § 2255 is denied." This court obtained a copy of the Honorable James H. Alesia's order in that case. The order denied Plaintiffs § 2255 motion because it was time barred under the applicable one-year limitation period provided by that statute.
It is clear that "prison officials must provide inmates access to the courts, and prison officials may not harass or retaliate against an inmate for exercising his right of access to the courts." Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir. 1996) (internal citations omitted). "To present a viable claim for denial of access to courts, . . . an inmate must allege and prove prejudice arising from the defendant's actions." Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998). "Therefore, an inmate must satisfy the standing requirement of `actual injury' by showing that the denial of legal resources hindered the prisoner's efforts to pursue a nonfrivilous claim." Penrod, 94 F.3d at 1403.
The record reflects that Plaintiff has filed several complaints concerning his access to "legal necessities." Plaintiff filed a habeas petition on September 9, 1996, concerning his access to legal necessities which was dismissed when he was later released from segregation on October 2. Then on December 23, 1996, Plaintiff filed another habeas petition in the United States District Court for the District of Kansas seeking access to "photocopying and typing equipment, legal material, legal calls, and personal legal documents and files." The Honorable Judge Richard D. Rogers dismissed Plaintiffs petition on March 17, 1997, due to Plaintiffs failure to specifically exhaust his remedies concerning his access to legal materials. Since that time, Plaintiff has filed several administrative grievances and Defendants acknowledge that Plaintiff has exhausted his available remedies regarding his access to legal materials.
The court finds that Plaintiffs allegations are conclusory and fail to allege the necessary personal participation of Defendants to state a cause of action. Plaintiff makes several statements to the effect that Defendants put Plaintiff in segregation with intentions of depriving him access to his legal necessities or that Defendants knowingly caused Plaintiff to lose standing in his litigation. However, there is no showing by Plaintiff that Defendants participated in or directed any actions by the prison officials which hindered his § 2255 litigation. Plaintiff never mentioned in any of his administrative grievances or in his habeas petition before Judge Rogers that Defendants Acosta or Lacy had personally deprived Plaintiff of legal necessities while he was in segregation.
In fact, Plaintiffs complaint reveals other justifications for his lack of access to legal materials. First, in Plaintiffs requests for relief, Plaintiff asks the court for a document stating that "Defendants actions directly or indirectly, but [sic] caused Plaintiff to loose [sic] standing . . . due to the inadequate law library, [sic] that was closed in May because it was being repainted, restocked with new legal material and necessities." Second, Plaintiff states in his briefs that he could not have all his legal materials because inmates can only obtain a handful of legal papers due to fire hazard. These statements may provide some explanations of why Plaintiff was unable to file his litigation, but such circumstances as an inadequate law library or a library closed for improvements hardly seem to implicate Defendants.
Furthermore, Plaintiff has not sufficiently stated why he was unable to file his § 2255 litigation, but still managed to file other legal proceedings. The court notes that while in segregation, Plaintiff was still able to file two separate habeas corpus petitions. Moreover, the federal court's order in Illinois questioned Plaintiffs lack of access to legal materials. The order states that the Supreme Court denied Plaintiffs petition for writ of certiorari on October 7, 1996. Therefore, Plaintiff had until October 7, 1997, to file his § 2255 motion. The motion, however, was filed on December 31, 1997. The opinion declined Plaintiff's request to toll the statute of limitations based on "extraordinary circumstances" beyond Plaintiffs control. The order, in part, provides:
Petitioner was warned on March 24 and September 16, 1997 that the court would not extend the limitation period which expired on October of 1997. In his first request for an extension he claimed he did not have "ample and adequate" access to a "well stacked" library; in his second request he claimed that he did not have access to his personal property for several weeks.
The court does not find these reasons sufficient. Petitioner had a year to complete his § 2255 motion. In August of 1997 he filed a motion to modify his sentence and a memorandum and reply in support of that motion. If petitioner did not have adequate access to a law library or access to his personal property, how could he file such a motion? The court does not accept petitioner's excuses. . . .
Thus, the fact that Plaintiff filed a motion in August 1997 further cuts against his allegations that he has been denied access to the courts.
Plaintiff has not shown that but for the actions of Defendants, he would have timely filed his § 2255 litigation. He fails to establish Defendant's personal involvement or explain why he was still able to file other federal claims. Plaintiffs claim must be dismissed for failing to "prove prejudice arising from" Defendants' actions.
In sum, the court concludes Plaintiff failed to: 1) timely file his retaliation claims against Defendants for their actions prior to March 29, 1997; 2) sufficiently establish the necessary personal participation concerning his retaliatory transfer and access to the court claims; 3) properly exhaust his remedies for the lost property claim.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants Acosta and Lacy's motion for summary judgment (Doc. 45) and Plaintiffs motion to submit documents in camera (Doc. 52) are granted.
Copies of this order shall be transmitted to pro se plaintiff Wayne Mitchell and counsel of record.
The case is closed.
IT IS SO ORDERED.