United States District Court, E.D. North Carolina, Western Division
John Marvin Ballard, Plaintiff, Pro se, Butner, NC.
For Tracy Johns, Dr. Karen Steinour, Candace Gregory, Mr. K. McKoy, J. Godwin, Defendants: Jennifer D Dannels, LEAD ATTORNEY, Federal Bureau of Prisons, Butner, NC; Michael D. Bredenberg, LEAD ATTORNEY, Federal Medical Center, Butner, NC; R. A. Renfer, Jr., LEAD ATTORNEY, Kimberly A. Moore, U.S. Attorney's Office, Raleigh, NC.
For Justin Andrews, Defendant: Jennifer D Dannels, LEAD ATTORNEY, Federal Bureau of Prisons, Butner, NC; R. A. Renfer, Jr., LEAD ATTORNEY, Kimberly A. Moore, U.S. Attorney's Office, Raleigh, NC.
Malcolm J. Howard, Senior United States District Judge.
This matter is before the court on defendants' motion to dismiss for failure to state a claim or, in the alternative, for summary judgment [DE #85]. Plaintiff has responded, albeit it out of time , to the motion. Also before the court is plaintiff's motion for an order overruling defendants' objections to certain document production requests [DE #84]. These matters are ripe for adjudication.
Plaintiff John Marvin Ballard (" plaintiff" ) is a civil detainee confined at the Federal Correctional Institution at Butner, North Carolina pursuant to 18 U.S.C. § 4248. On February 28, 2011, plaintiff filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), challenging various conditions of his detention, including claims concerning telephone restrictions, the seizure and destruction of legal documents, being placed in administrative segregation without due process, and the inability to attend religious services [DE #1, 4, 5]. On July 11, 2012, the court granted defendants' motion to respond to the complaint out of time, denied defendants' motion to dismiss or for summary judgment, and granted in part and denied in part several motions by plaintiff [DE #36].
On September 13, 2012, Magistrate Judge William A. Webb issued a scheduling order, directing that all motions of any kind must be filed by October 26, 2012 [DE #38]. On October 19, 2012, the court granted plaintiff's motion for reconsideration, and allowed plaintiff to proceed with claims against former Butner Warden Tracy Johns [DE #41]. On October 26, 2012, defendants filed a second motion to dismiss or for summary judgment [DE #43], along with a declaration by Tracy Johns [DE #45]. Pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court notified plaintiff about
the motion, the consequences of failing to respond, and the response deadline [DE #46]. On November 1, 2012, defendants moved to consolidate several Bivens actions by § 4248 detainees [DE #47].
On November 6, 2012, plaintiff filed a motion for appointment of counsel [DE #48]. On November 29, 2012, plaintiff filed a motion for discovery [DE #52]. On December 13, 2012, having sought and obtained an extension of time in which to do so [DE #48, 50], plaintiff responded in opposition to defendants' motion to dismiss or for summary judgment [DE #53]. On January 18, 2013, plaintiff moved to amend his complaint [DE #56]. On April 2, 2013, the court denied defendants' motion to consolidate [DE #64]. On April 11, 2013, defendants responded in opposition to plaintiff's motion for appointment of counsel [DE #65] and moved to extend the time for responding to plaintiff's proposed amended complaint [DE #66].
On May 3, 2013, this case was reassigned to the undersigned. [DE #69]. By order filed August 15, 2013, this court denied plaintiff's motions for appointment of counsel and discovery [DE #48, 52]. Additionally, the court granted plaintiff's motion to amend [DE #56], granted defendants' motion for an extension of time [DE #66], and granted in part and denied without prejudice in part defendants' motion to dismiss or for summary judgment [DE #43]. Specifically the court dismissed the Bivens claims for monetary damages against the government and the government employees in their official capacities.
A new scheduling order was entered on September 11, 2013 [DE #74]. Defendants answered the complaint on September 16, 2013 [DE #76]. Plaintiff filed a motion to transfer or expedite or issue a temporary injunction or temporary restraining order, which was denied by order filed October 30, 2013 [DE #79]. Plaintiff also filed a motion for production of documents [DE #78], which was denied as moot by order of Magistrate Judge William A. Webb on November 8, 2013 [DE #81]. Now before the court are the plaintiff's motion to overrule objections to requests for document production [DE #84], and defendants' motion to dismiss or for summary judgment [DE #85]. Remaining before the court are plaintiff's claims for individual liability of the government employees under Bivens and plaintiff's claims for injunctive relief against the defendants in their official capacities.
STATEMENT OF THE FACTS
Since becoming a civil detainee in 2010, plaintiff has been subject to discipline on several occasions. He takes issue with this discipline, as he believes as a civil detainee he is not subject to the BOP disciplinary policies. Plaintiff alleges that he should not be subjected to the discipline and restrictions of the Commitment and Treatment Program (" CTP" ). In 2006, FCI Butner began to house federal inmates whose sentences were about to expire, and who were being considered for certification as " sexually dangerous persons" under the Adam Walsh Act. The BOP established the CTP at FCI-Butner,
which houses post-sentence inmates who have been certified or committed as sexually dangerous persons under the Adam Walsh Act for the purposes of confinement and treatment. The overall mission of the CTP is to protect the public by reducing the incidence of sexual violence and child molestation in society by confining and providing comprehensive treatment services to individuals civilly committed as sexually dangerous persons. The purpose of providing such confinement and treatment is to assist these individuals in developing effective
self-management skills, and to prepare them for productive and crime-free lives upon conditional discharge ...