United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on defendants' motion to dismiss, or in the alternative, for summary judgment. (DE 40). Plaintiff did not respond to defendants' motion. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants defendants' motion.
STATEMENT OF THE CASE
On September 7, 2011, plaintiff filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). On June 16, 2012, the court conducted an initial review of plaintiff's action pursuant to 28 U.S.C. § 1915(e)(2)(b), and directed plaintiff to particularize his claims. Plaintiff filed his amended complaint on September 28, 2012.
In his amended complaint, plaintiff alleges the following claims: (1) defendant Captain M. Doyle ("Doyle") violated his constitutional rights by engaging in slanderous and threatening language; (2) defendants Doyle, Lieutenant Barnes ("Barnes"), L. Lindsley ("Lindsley"), E. Martinez ("Martinez"), and Officer Womack ("Womack") retaliated against him for filing administrative tort claims and grievances; (3) Lindsley violated his constitutional rights when she placed plaintiff on commissary restriction in response to his refusal to repay federal student aid debt; (4) defendants denied him access to courts; (5) defendant Sara Revell ("Revell") failed to protect him because she failed to enforce Bureau of Prisons ("BOP") policies and procedures relating to his complaints about staff retaliation. In addition to the above-stated retaliation claim, plaintiff alleges retaliatory conduct including pat and strip searches, placement in the Special Housing Unit ("SHU"), slanderous and libelous comments from staff, being sprayed with pepper-spray, and refusal to process grievances.
As relief, plaintiff seeks transfer to the Federal Prison Camp in Petersburg, Virginia, disciplinary suspension of defendants, and monetary damages. Plaintiff also requests that the government repay student aid Pell Grant money that he was awarded.
On October 16, 2012, the court allowed plaintiff to proceed with the action. On April 17, 2013, defendants filed a motion to dismiss, or in the alternative, for summary judgment. Defendants argue that they are entitled to summary judgment on plaintiff's claims arising out of the use of pepper-spray and subsequent denial of medical care because plaintiff failed to exhaust his administrative remedies. Defendants also argue that they are entitled to summary judgment on plaintiff's claim that prison officials wrongfully collected his funds to repay his Pell Grant. As for plaintiff's remaining claims, defendants move to dismiss these claims for failure to state a claim upon which relief may be granted.
On April 29, 2013, plaintiff notified the court that he would be released from custody on May 14, 2013. Although he was provided two extensions of time, plaintiff failed to respond to the pending motion to dismiss, or in the alternative, for summary judgment.
STATEMENT OF FACTS
A. Claims subject to motion to dismiss
For purposes of those claims for which defendants seek dismissal as a matter of law, under Rule 12(b)(6), the facts alleged in the complaint may be summarized as follows. Plaintiff was incarcerated at the Federal Medical Center in Butner, North Carolina when this cause of action arose. (Am. Compl. p. 2). On August 24, 2009, plaintiff received financial aid in the form of a Pell Grant from the United States Department of Education. (Id.). The "grant was solicited to the general population at FMC-Butner, but [plaintiff] was singled out for student aid fraud." (Id.).
On the date plaintiff received the Pell Grant, defendant Doyle interrupted an interview between defendant Boston and plaintiff, and made the following remarks: "I'm going to prosecute you for fraud"; "This is the Con-Artist"; and "How long did you think you was going to get away with it, Madoff Jr." (Id.). Defendant Doyle labeled plaintiff a "fraudster." (Id.). Then, on December 23, 2010, defendant Doyle "decided to get aggressive with his slanderous comments" and stated "[y]ou know your (sic) going to die in federal prison." (Id.).
On May 31, 2011, defendant Martinez advised plaintiff that she had lost or misplaced an administrative remedy request that plaintiff had filed against defendant Doyle for communicating threats. ( Id. p. 4). Defendant Martinez advised plaintiff to re-file his administrative remedy request.
(Id.). On May 25, 2011, defendant Womack searched plaintiff at 11:05 a.m.
with a handheld metal detector entering the kitchen, exiting the kitchen (5 min later) I was pat searched by [defendant] Doyle, he asked, where is the knife (shank)? Then he inquired about the tort claim [plaintiff] filed against him for personal injury ($150, 000.00) and that it would be in [his] best interest to drop this claim! He offered in exchange for a transfer to another institution closer to my family in Texas or Oklahoma, but I had to first drop the tort claim.
(Id. pp. 2-3). Defendant Doyle then spoke with the unit team members regarding plaintiff's transfer in exchange for the dismissal of plaintiff's administrative tort claim. (Id.).
On June 14, 2011, Lieutenant Barbee and defendant Barnes offered plaintiff contraband in exchange for the dismissal of another administrative tort claim which involved the loss of personal property. ( Id. p. 3). Plaintiff was offered United States postage stamps and a pair of sneakers to settle his property-related administrative tort claim totaling one thousand one hundred eight dollars and thirty-one cents ($1, 108.37). Plaintiff notified internal affairs of this incident. (Id.).
On July 22, 2011, defendant Doyle "proceeded to intimidate and threaten [plaintiff] for filing a complaint with the Warden ([defendant] Sara Revell), notifying her of the Captain[']s behavior: harassment, threats, and bribery." (Id.). Defendant Doyle informed plaintiff that if he continued to file complaints of threats, that plaintiff would be experiencing consequences. (Id.). Internal affairs investigated plaintiff's allegations on August 18, 2011. (Id.). On August 23, 2011, prison officials placed plaintiff in the SHU under administrative investigation for filing complaints against defendant Doyle. ( Id. p. 4).
On September 8, 2011, correctional officer Wright pepper-sprayed plaintiff because plaintiff filed complaints against defendant Doyle. (Id.). Plaintiff subsequently was denied medical treatment for his asthma by the staff in the SHU. (Id.). Plaintiff states that he has upper ...