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stating that "each claim" must be exhausted at every level of review
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No. 4:08-CV-1034.
August 14, 2009
MEMORANDUM
This matter is before the Court on the July 1, 2009 Report and Recommendation ("R R") of Magistrate Judge Mannion (Doc. 75) which recommends that plaintiff Carlos Ramirez's complaint be dismissed. No objections to the R R have been filed.
Objections were due on or before July 20, 2009. To this date, none have been filed.
When, as here, no objections are made to a magistrate judge's report and recommendation, the district court is not statutorily required to review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the Third Circuit, however, "the better practice is to afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). "[T]he court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating "the failure of a party to object to a magistrate's legal conclusions may result in the loss of the right to de novo review in the district court").
As noted above, no objections to the R R have been filed. Because the Court agrees with the sound reasoning of the Magistrate Judge, we will adopt the R R in its entirety. With a mind towards conserving judicial resources, the Court will not rehash the reasoning of the Magistrate Judge. Rather, we attach a copy of the R R, as it accurately reflects our consideration and resolution of the matter.
An appropriate order will be entered.
REPORT AND RECOMMENDATION
For the convenience of the reader of this document in electronic format, hyperlinks to the court's record and to authority cited have been inserted. No endorsement of any provider of electronic resources is intended by the court's practice of using hyperlinks.
Before the Court is Defendants' Motion to Dismiss and for Summary Judgment (the "Motion"). (Doc. No. 50.) Having considered the parties' briefing and other papers, relevant federal and state statutes, rules, and case law, the Court will recommend GRANTING the motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Although the factual background of this case, particularly in regard to whether plaintiff has exhausted his administrative remedies, appears to be disputed, there seems to be agreement with regard to its procedural background. For the purposes of evaluating defendants' request for dismissal under Rule 12(b)(6), the Court assumes as true all well-pled allegations in plaintiff's corrected amended complaint (the "Complaint"). (Doc. No. 31.)
On May 28, 2008, and while incarcerated at the federal Low Security Correctional Institution-Allenwood, Pennsylvania, plaintiff filed a writ of habeas corpus under 28 U.S.C. § 2241. Notwithstanding its title, given the nature of the claims made and the relief sought, the Court construed the application as a prisoner civil rights claim, a Bivens action, brought against federal officers and employees. The Court ordered the United States Marshall to serve the complaint on the defendants. (Doc. No. 4.) Subsequently, the plaintiff made a motion to amend the complaint. (Doc. No. 15.) The Court granted the motion, (Doc. No. 16), and an amended complaint was filed. (Doc. No. 18). After this, plaintiff made a further motion to correct the amended complaint, (Doc. No. 19), and requested an extension of time to file an amended complaint. (Doc. No. 27). The Court granted plaintiff's request, (Doc. No. 28), and the (corrected or second) amended complaint (the "Complaint") was filed, (Doc. No. 31). Plaintiff's action is brought against the warden and over twenty other defendants. He asserts a variety of grievances, including injury connected to the fact that a detainer was filed against him. The purpose of the detainer was to remove him to the country of his birth at the completion of his sentence. Plaintiff is, in fact, a naturalized United States citizen. Thus, the issuance of the detainer was in error. And plaintiff was not, in fact, removed from United States, although he claims he suffered some harm connected to the issuance of the detainer.
Plaintiff was subsequently transferred to the Federal Medical Center, Lexington, Kentucky. (Doc. No. 67.)
See Bivens v. Six Unnamed Agents of the Fed. Bureau of Narcotics , 403 U.S. 388 (1971).
Plaintiff makes a number of other claims. He was disciplined for missing a GED class. He was disciplined for refusing to enter the general population when ordered to do so. He argues that defendants retaliated against him when he complained and attempted to exhaust his administrative remedies. He argues that defendants interfered with his access to the courts and with his mail. He asserts his claims under the Fourth Amendment, Fifth Amendment, Sixth Amendment, Eighth Amendment, and the Fourteenth Amendment (due process and equal protection).
Defendants have moved to dismiss or, in the alternative, for summary judgment. (Doc. No. 50). Their motion is supported with a brief in conjunction with declarations and exhibits, (Doc. No. 54), and filed in conjunction with a statement of material facts ("SMF"). (Doc. No. 55). The defendants assert that they are entitled to relief on a variety of grounds, but primarily because plaintiff has failed to exhaust his administrative remedies. Plaintiff failed to respond with a tradition brief, or with any declarations or affidavits. Instead, plaintiff submitted a one-page letter response. (Doc. No. 57.) Afterwards, he filed a second document with a one-page argument section, (Doc. No. 61), in conjunction with dozens of exhibits and over two hundred pages. (Doc. No. 62). Nothing in plaintiff's filing explains the chronology of these documents, or how each of these documents relates to each of his particular claims or legal theories, or how each of these documents establishes exhaustion in regard to each claim he asserts in this action.
II. STANDARD OF REVIEW
Defendants' Motion and supporting brief seeks relief under Rule 12(b)(6), and, in the alternative, under Rule 56.
Motion to Dismiss Standard Under Rule 12(b)(6). The defendants' motion to dismiss is brought pursuant to the provisions ofFed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States , 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly , 550 U.S. 544, 127 S. Ct. at 1965 . This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Id. Furthermore, in order satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544, 127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick , 502 F.3d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus. , 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n , 288 F.3d 548, 560 (3d Cir. 2002).
Rule 56 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 as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp. , 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); Aetna Casualty Sur. Co. v. Ericksen , 903 F. Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249 ; see also Marino v. Indus. Crating Co. , 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make credibility determinations). Rather, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates , 482 F.3d 641, 647 (3d Cir. 2007).
To prevail on summary judgment, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323-24 . The moving party can discharge the burden by showing that "on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman , 327 F.3d 229, 238 (3d Cir. 2003); see also Celotex , 477 U.S. at 325 . If the moving party meets this initial burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts," but must show sufficient evidence to support a jury verdict in its favor. Boyle v. County of Allegheny , 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986)). However, if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial," Rule 56 mandates the entry of summary judgment because such a failure "necessarily renders all other facts immaterial." Celotex Corp. , 477 U.S. at 322-23 ; Jakimas v. Hoffman La Roche, Inc. , 485 F.3d 770, 777 (3d Cir. 2007).
III. LEGAL ANALYSIS
A. Exhaustion
Exhaustion of administration remedies by prisoner-plaintiffs is mandatory. See Nyhuis v. Reno , 204 F.3d 65, 72-73 (3d Cir. 2000) (citing 42 U.S.C. § 1997e(a)). The government argues, supported by its statement of material facts, (Doc. No. 55 at 3-11), and declarations, (e.g., Doc. No. 54-2 at 3-8), that plaintiff has failed to exhaust and asks for summary judgment on in regard to all claims, except for the retaliation claim. The Court agrees.
In order to effectively oppose defendants' exhaustion argument, the plaintiff has to make a showing in regard to each of his claims. In regard to each claim, he must show that he attempted to exhaust that claim initially and at every level of review provided by the prison system. That showing must be supported by some evidence, which may take the form of an affidavit or declaration. Here, plaintiff has failed to do both. He has failed to come forward with any argument explaining in regard to each claim how he attempted to exhaust it. And he has failed to put forward evidence supporting that showing. Instead, he makes a pro forma argument that he "exhausted all his remedies with the exception of the ones that the defendants refused to answer" and that defendants tampered with his mail. (Doc. No. 61 — at 2.) But even here, plaintiff fails to explain which claims were actually exhausted and which claims were not exhausted because of (alleged wrongful) action taken by defendants. As for the exhibits he puts forward, presumably as evidence with which to oppose summary judgment and exhaustion, (Doc. No. 62), plaintiff fails to explain how each document relates to each of his claims and what inferences he would have the Court take from each document. In reality, what plaintiff has done is to put forward hundreds of pages of documents and is asking the Court to analyze them and draw whatever inferences are necessary to save his case and his claims — i.e., essentially, plaintiff is trying to turn the Court into his attorney. If plaintiff refuses to develop his arguments in a brief, as required by the rules, the Court cannot become his lawyer and invent arguments for him.
Thus the Court will recommend granting summary judgment on exhaustion grounds on behalf of all defendants (except for Douglas Sabin and Scott Blake), on all grounds (except for the retaliation claim).
Defendants' opening brief did not seek relief for defendants Sabin and Blake on exhaustion grounds. (Doc. No. 54 at 17.)
In their opening brief, defendants argue that plaintiff failed to exhaust all of his claims, except his retaliation claim. (Doc. No. 54 at 19 n. 3.)
B. Rule 56 Compliance
Plaintiff alleges that defendants retaliated against him for engaging in protected activity, i.e., filing grievances and lawsuits against prisoner officials. Establishing a retaliation claim requires the plaintiff to plead and prove that the constitutionally protected activity he had engaged in was a "substantial factor" or "motivating factor" behind the adverse action taken by the state actor. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 286-87 (1977). Here the government puts forward evidence tending to establish that the prison officials were not retaliating, much less retaliating in consequence of plaintiff's having had engaged in protected activity. For example, in regard to having (at first) denied plaintiff access to a notary, the defendants put forward evidence that plaintiff failed to properly request access to a notary and, in fact, they eventually gave plaintiff access to a notary. See SMF ¶¶ 38-46 (citing McCluskey declaration and other documentary evidence). (Doc. No. 55 at 7-8.) Likewise, in regard to plaintiff's claim that plaintiff was ordered into the general prison population in retaliation for engaging in protected activity, and ordered to do so despite his claim that such a change in housing assignment endangered him, defendants put forward evidence that they conducted an investigation and ordered the new housing assignment after having concluded that plaintiff's allegations of threats to his safety were not substantiated. See SMF ¶¶ 64-69 (citing McCluskey declaration and other documentary evidence). (Doc. No. 55 at 10-11.) Where, as here, a summary judgment motion is supported by evidence, a non-movant cannot stand on his pleadings, but must come forward with facts supported by evidence. Plaintiff, however, has made no showing at all. Thus, the Court will recommend granting summary judgment on the retaliation claim on behalf of all defendants.
C. Rule 12(b)(6) Dismissal of Due Process Claim Against Sabin and Blake
It appears that the only claims brought against defendants Douglas Sabin and Scott Blake are due process claims. Complaint ¶¶ 29, 57, 74, 103; cf. supra notes 4 5. Defendants argue that the allegations fail to state a claim.
The primary claim against Sabin is that he wrongfully issued an immigration detainer against plaintiff. Id. ¶ 29. Plaintiff fails to explain how this action, which (because the detainer was later withdrawn) did not result in his deportation, violated any due process right, or any recognized liberty or property interest. Although it is not entirely clear, his claim may be that the detainer resulted in a transfer to a less desirable area within the prison (i.e., during the time he faced deportation under the detainer and prior to the detainer's being withdrawn). His Complaint notes that the detainer was issued on 5-24-07, and the next fact alleged is that "on 6-14-07 plaintiff was taken to the hole, DHS/ICE investigation" where he was left for some 55 days (until "8-7-07," apparently counting the 5-24-07 and 8-7-07 in the computation). Complaint ¶¶ 29-30, 35. However, there is no allegation that his change in housing assignment was inflicted as a punishment. Rather, it appears that the change in housing assignment merely effectuated established policy in regard to either housing prisoners with outstanding detainers or housing prisoners (like this one) about to be transferred to another prison. Our case law establishes that due process rights are triggered where punishment is imposed to sanction wrongful conduct, the factual basis of which is contested. Because plaintiff fails to allege that his change in housing assignment was imposed as a punishment, his claim fails. See Wolff v. McDonnell , 418 U.S. 539, 571 n. 19 (1974) (holding that due process concerns are triggered "as a hedge against arbitrary determination[s] of the factual predicate for imposition of [a] sanction"); see also Meachum v. Fano , 427 U.S. 215, 225 (1976) (holding that a prisoner has no right against transfer); Hewitt v. Helms , 459 U.S. 460, 468 (1983) ("[T]he transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence."), partially abrogated on other grounds by Sandin v. Conner , 515 U.S. 472 (1995); cf. McCann v. Coughlin , 698 F.2d 112, 113 (2d Cir. 1983) (noting that two-weeks in "keeplock" or a special housing unit triggers due process where "inflicted" as "punishment").
Sabin's action was taken before any of the other wrongful conduct about which plaintiff complains. It follows his conduct cannot be categorized as a retaliation claim. See Complaint ¶¶ 1-27 (listing defendants); 28-30 (listing factual allegations in chronological order — starting with allegations against Sabin).
Plaintiff also alleges that he wrote defendant Sabin on 6-30-07 and again on 7-31-07, informing him that the detainer was issued in error and that plaintiff was, in fact, a naturalized citizen, and, therefore, not subject to deportation. Complaint ¶¶ 32-33. Thus, plaintiff was left in the segregated area some 38 days after he notified Sabin of his status as a United States citizen. This constellation of facts does not state a due process claim. The fact that his initial transfer may have been in error, arising from a policy which segregates prisoners subject to immigration detainers or for any other reason unrelated to punishment inflicted as a sanction for wrongdoing in the prison, does not mean plaintiff has a right to leave the segregated area the moment he puts the prison system on notice of their prior administrative error. The prison system released him from the segregated area within 38 days of plaintiff's sending Sabin notice of plaintiff's status as a naturalized citizen (although it is by no means clear that this notice was what led to his release from the segregated area). Furthermore, there are no allegations that Sabin had any personal involvement in the decision to release plaintiff or had any authority in regard to any such decision. In these circumstances, even if the allegations in the Complaint were proved at trial, one cannot conclude that Sabin violated any of plaintiff's liberty interests.
The gravamen of the remaining allegations, Complaint ¶¶ 57, 74, 103, is that defendants Sabin and Blake, failed to act on grievances and issues plaintiff submitted to them. See, e.g., id. ¶ 74 ("[P]laintiff asked defendant Sabin about the cop-outs I sent him. He [said] you need to stop harassing my officers. You know why you're here. . . ."). As the defendants argue, the fact that he did not get the relief or answer sought does not amount to a failure of due process or any other constitutional right for which he can receive relief here. Indeed, what precise constitutional right he seeks to vindicate remains unclear.
D. Failure to pay filing fee.
Finally, the defendants argue that this action should be dismissed on the grounds that plaintiff's failing to pay required filing fees amounts to a failure to prosecute this action under Rule 41(b). It appears to the Court that the failure to take funds out of the plaintiff's account was an oversight by the clerk of the court and the prison staff rather than any action or inaction by the plaintiff. The docket sheet indicates that the plaintiff submitted the appropriate authorization form (Doc. No. 3) however the clerk of court apparently failed to forward the appropriate notification to the warden. (Docket sheet generally). The defendants, as the ones normally responsible for the deductions, would be aware from their own records that no such order of court existed nor has the prison defendants ever notified the court of this obvious error. In light of this, their argument for dismissal on these grounds has a disingenuous ring. At any rate, dismissal will not be recommended on this ground, but rather the clerk will be directed to correct the mistake by forwarding the appropriate order to the prison authorities so the full fee can be deducted as required by law.
IV. CONCLUSION
For the reasons elaborated above, the Court recommends GRANTING defendants' Motion. Specifically, the Court recommends:
(1) GRANTING the Motion (Doc. No. 50); and,
(2) DISMISSING the Complaint, (Doc. No. 31), with prejudice.