The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter is before the Court on Defendant United States Federal Bureau of Prison's motion to dismiss pro se Plaintiff Tunde Adeyi's ("Plaintiff") amended complaint [Docket Item 24] and Defendant Counselor Simms' motion for summary judgment [Docket 25]. The Plaintiff filed opposition. [Docket Item 30.] For the reasons discussed herein, the court will grant the Defendants' motion to dismiss and motion for summary judgment.
The underlying facts of this case are set forth in the court's May 4, 2010 Opinion [Docket Item 2] and are incorporated herein.
The Plaintiff is a federal prisoner at FCI - Fort Dix and filed the instant action against FCI Fort Dix Health Services and FCI Fort Dix Counselor Simms pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The Plaintiff's initial complaint alleged the following causes of action: violation of his Eighth Amendment right to adequate medical care when Defendant Simms assigned plaintiff to snow removal and a top bunk; violation of his procedural due process rights during his prison disciplinary proceedings; violation of his First Amendment rights when Defendant Simms allegedly retaliated against the Plaintiff by filing a false disciplinary charge after Plaintiff complained about the snow removal detail and his assignment to a top bunk; and deprivation of personal property when Defendant Simms failed to pack and secure Plaintiff's personal property when Plaintiff was transferred to a special housing unit.
After granting the Plaintiff's application to proceed in forma pauperis, the court screened the Plaintiff's complaint pursuant to 28 U.S.C. Section 1915(e)(2). The court issued an opinion concluding that the Plaintiff's complaint should be allowed to proceed in part. [Docket Item 2.] The court dismissed all claims against FCI Fort Dix Health Services for failure to state a claim because the Plaintiff did not allege any facts to establish that FCI Fort Dix Health Services had any involvement in the alleged harm caused to the Plaintiff. The court also dismissed Plaintiff's claim against Defendant Simms for deprivation of property for failure to state a claim because meaningful post-deprivation remedies were available. However, the court allowed Plaintiff's complaint to proceed against Defendant Simms for denial of medical care, retaliation and denial of disciplinary due process. [Docket Items 2 and 3.]
The Plaintiff then filed an amended pleading seeking to supplement his original complaint by adding a claim against the United States Federal Bureau of Prisons ("United States" or "BOP") alleging a violation of the Federal Tort Claim Act, for damages caused by the BOP's failure to secure plaintiff's personal property, which included a wrist watch, a book Plaintiff was writing, a hearing aid case, his writings and other items. [Docket Item 13.] The Amended Complaint did not change the nature of Plaintiff's constitutional claims against Defendant Simms nor did the Amended Complaint add any further factual allegations to establish any involvement by the FCI Fort Dix Health Services in causing the alleged injuries to the Plaintiff.
Prior to filing his amended complaint, the Plaintiff filed an administrative tort claim with the Bureau of Prisons ("BOP"), pursuant to the provisions of the Federal Tort Claims Act ("FTCA"). The administrative tort claim alleged that the Plaintiff's personal property was lost on February 22, 2008, when Defendant Simms failed to properly secure the property as Plaintiff was being escorted to the Special Housing Unit. The Plaintiff signed this tort claim and dated it August 4, 2009. (Moran Decl., Ex. 6.)
The BOP treated this claim as a claim brought pursuant to 31 U.S.C. § 3723, which permits federal government agencies to settle claims for damage to, or loss of, privately owned property caused by the negligence of federal employees acting within the scope of their employment. See 31 U.S.C. § 3723. The BOP rejected the Plaintiff's claim because it was not submitted within the one year limitations period prescribed by 31 U.S.C. § 3723(b). (Moran Decl., Ex. 6.)
The Defendant United States filed the instant motion to dismiss the Plaintiff's amended complaint alleging an FTCA claim pursuant to Fed. R. Civ. P. 12(b)(1). The United States argues that Plaintiff's FTCA claim must be dismissed for lack of subject matter jurisdiction because this claim is barred by the FTCA's detention of goods exception at 28 U.S.C. § 2680(c). In addition, to the extent the Plaintiff is attempting to appeal the BOP's rejection of his claim pursuant to 31 U.S.C. § 3723, the United States argues this claim must also be dismissed as the BOP's decision to settle or not a settle a claim under 31 U.S.C. § 3723 is not subject to judicial review.
Defendant Simms also filed a motion for summary judgment as to Plaintiff's remaining constitutional claims. As to Plaintiff's adequate medical care claims, Defendant Simms argues that the Plaintiff failed to exhaust his grievances as to his snow removal duty and his top bunk assignment. First, Defendant Simms argues that the Plaintiff never filed a grievance as to his snow removal duty. Second, Defendant Simms maintains that Plaintiff filed his grievance regarding his top bunk assignment approximately 11 months after the incident, which is well outside the twenty day time limitation prescribed in 28 C.F.R. § 542.15(b)(2). Defendant Simms provides factual support for these arguments by producing the Declaration of Tara Moran, the Legal Assistant to the BOP and copies of the Plaintiff's filed grievances.
Defendant Simms also argues that Plaintiff's due process claim must be dismissed because the Plaintiff has alleged no facts and provided no evidence showing that Defendant Simms was involved in the disciplinary hearing. Defendant Simms argues that he had no personal involvement in the Plaintiff's disciplinary hearing and had no role in whether the Plaintiff was able to present witnesses or evidence. Defendant Simms submitted his own affidavit attesting to his lack of personal involvement in Plaintiff's disciplinary hearing.
Finally, Defendant Simms argues that Plaintiff's retaliation claim also must be dismissed. Defendant Simms maintains that he filed the disciplinary charge against the Plaintiff for insolence towards a staff member on April 7, 2008, approximately 11 months prior to Plaintiff filing a grievance about his top bunk assignment. Therefore, Defendant Simms argues that the disciplinary charge could not have been filed in retaliation to the Plaintiff's constitutionally protected activity since the Plaintiff had not engaged in constitutionally protected activity at the time the disciplinary charge was lodged. Defendant Simms relies on his own affidavit and supporting exhibits as well as the Declaration of Tara Moran.
The Plaintiff filed opposition to the motion for summary judgment. The Plaintiff argues that he did exhaust his administrative remedies; however, the Plaintiff does not address why his initial grievance contesting his bunk assignment was filed outside the applicable limitations period. The Plaintiff reiterates his allegations that Defendant Simms violated his rights under the Eighth Amendment by ignoring his medical conditions and assigning him to snow removal duty and an upper bunk.
The Plaintiff maintains his due process rights were violated by his inability to present witnesses and evidence at his disciplinary hearing but the Plaintiff does not provide facts which show Defendant Simms had a personal involvement in these deprivations. Rather, Plaintiff relies on Defendant Simms' authorship of the initial incident report as sufficient evidence to hold Defendant Simms accountable for the conduct of the subsequent disciplinary proceedings.
The Plaintiff alleged in his filed grievance that Defendant Simms issued the April 7, 2008 disciplinary report against him in retaliation. The Plaintiff states that he was initially moved to a lower bunk on March 26, 2008. The Plaintiff went to the Medical Department on March 26, 2008 and received a copy of his lower bunk pass which he showed to Defendant Simms. Defendant Simms then authorized the Plaintiff to move to the lower bunk in his cell. On April 7, 2008, the unit officer on duty saw the Plaintiff on the bottom bunk and allegedly told the Plaintiff to move to the top bunk because the unit officer's records reflected he should be occupying the top bunk. The Plaintiff then alleges that he moved his bed to the top bunk pursuant to the unit officer's order and then went to the Medical Department to get another copy of his ...