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Gail v. Holland

United States District Court, E.D. Kentucky, Southern Division, London

August 8, 2014

DEVRICK R. GAIL, Plaintiff,
WARDEN J.C. HOLLAND, et al., Defendants.


KAREN K. CALDWELL, Chief District Judge.

Devrick R. Gail is an inmate at United States Penitentiary-Allenwood, located in White Deer, Pennsylvania. Gail has filed a pro se civil rights complaint alleging violations of his federal constitutional rights under 28 U.S.C. § 1331, pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Gail's claims arise from events which allegedly transpired on January 12, 2013, while he was confined in the USP-McCreary, located in Pine Knot, Kentucky. Gail alleges that on that date, the named defendants, [1] all USP-McCreary officials, failed to properly supervise the internal operation of the prison and thus failed to protect him from physical harm at the hands of another USP-McCreary prisoner. Gail claims that the defendants' omissions resulted in another USP-McCreary prisoner physically attacking him with a dangerous weapon, causing him to sustain serious bodily injuries. Gail was unable to identify which federal law or provision of the U.S. Constitution applies to his claims, but construing his claims broadly, he appears to be claiming that the defendants violated his rights guaranteed under the Eighth Amendment of the U.S. Constitution, which prohibits cruel and unusual punishment. By separate Order, Gail has been granted in forma pauperis status.

The Court has conducted a preliminary review of Gail's complaint because he asserts claims against government officials and because he has been granted pauper status. 28 U.S.C. §§ 1915(e)(2)(B), 1915A. Because Gail is not represented by an attorney, the Court liberally construes his claims and accepts his factual allegations as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). For the reasons set forth below, however, the Court determines that Gail's construed Eighth Amendment failure-to-protect claims must be dismissed because they are premature.


Gail alleges that on January 12, 2013, while he was confined in USP-McCreary, another inmate in that prison, identified as "Inmate J.W., "[2] physically attacked him using an implement which Gail describes as "an eight-inch threaded rod/steel screw that was sharpen [sic] to a point and had a makeshift handle." [R. 1, p. 2] Gail states that as a result Inmate J.W. assaulting him with that implement, he sustained multiple stab wounds to his the left side of his head, face, chest, and leg, and that those injuries required him to be transported to a local hospital to receive medical treatment. [ Id. ]

Gail alleges that at the time Inmate J.W. assaulted him, the defendants failed to remain alert and attentive while on duty; failed to supervise prisoners' activities to ensure that the facility was safe and secure; failed to observe that Inmate J.W. had become intoxicated and had gained access to a dangerous and/or deadly weapon; failed to promptly respond to the situation after Inmate J.W. attacked him; failed to properly investigate the assault on him by Inmate J.W.; covered up the fact Inmate J.W. had obtained a dangerous weapon and used it to assault him; conspired and falsified federal documents during that investigation; and failed to protect him from a harm from another inmate. Gail alleges that Inmate J.W. stabbed him repeatedly, and that "... for several minutes I was forced to defend myself against an intoxicated man wielding an eight inch threaded rod/steel screw (knife)." [ Id.; see also, R. 1, p. 6 "[Inmate J.W.] was thoroughly intoxicated and had access to an eight inch threaded rod/steel screw on the night he stabbed me eleven times..."]

Numerous prison staff members filed reports or memoranda memorializing their observations of the altercation between Gail and Inmate J. W. See Memoranda, R. 1-1, pp. 21-31. These reports indicate that the prison staff members observed several inmates fighting in Unit 6A, including Gail and Inmate J.W., and that various prison staff members had to use physical force to end the fight. [ Id. ] On January 12, 2013, "M." Parsons, USP-McCreary Correctional Officer, issued an Incident Report charging Gail with "Fighting with Another Inmate, " a violation of BOP Prohibited Acts Code ("PAC") 201. See Incident Report [R. 1-1, p. 8]. In Section 11 of the Incident Report, "Description of Incident, " Parsons described the event as follows:

Description of Incident (Date: 1-12-13 Time: 9:09 Staff become aware of incident)
I, Officer M. Parsons observed a commotion in the unit. At that time I observed inmate Gail, Devrick #XXXXX-XXX fighting with inmate [J. W.] in front of the laundry room. At that time I ordered the inmates to stop fighting and they did not comply. At that time I placed inmate Gail on the floor and applied restraints. At that time inmate Gail was taken to Medical and Inmate [J.W.] was taken to SHU.

[ Id., § 11]

The Unit Disciplinary Committee referred the "Fighting" charge to a Disciplinary Hearing Officer ("DHO") for a hearing. [ Id., §§ 18(B)-21] On January 16, 2013, a disciplinary hearing transpired on the "Fighting" charge against Gail, over which DHO Gary Mehler presided. On February 20, 2013, DHO Mehler prepared a written report of the proceeding. See DHO Report, R. 1-1, pp. 14-16. Mehler's Report states that at the hearing, Gail waived staff representation, offered no documentary evidence on his behalf, and, after being read the allegations of the Incident Report, gave the following statement on his own behalf: "It's true, I fought in self-defense." [ Id., p. 1, "Summary of Inmate Statement"] Mehler noted that in addition to the Incident Report, he also considered photographs taken on January 12, 2013, of those involved in the altercation; a clinical encounter dated January 12, 2103, regarding Inmate J.W.; and 13 separate memoranda submitted by prison staff members setting forth their observations of the events of January 12, 2103. [ Id., p. 15, § 5(D)]

Based on the Correctional Officer Parsons's description of the events of January 12, 2103, set forth in the Section 11 of the Incident Report, and the other enumerated materials submitted in support of the Incident Report, DHO Mehler found Gail guilty of the PAC 201 offense, as charged. [ Id., pp. 15-16] Mehler noted that at the hearing, Gail admitted that he was fighting at the relevant time, and that he did not refute "any portion of the description of the incident as reported in Section 11 of the Incident Report." [ Id., p. 16] Mehler noted that Gail's conduct threatened not only his own the health, safety, and welfare, but also that of other inmates and prison staff, and further observed that fights between two inmates often expanded to include more inmates, which then created an even larger problem which prison staff must contain. [ Id. ] The sanctions which DHO Mehler imposed consisted of the forfeiture of 27 days of good-time credits and 15 days of disciplinary segregation. [ Id. ]

On March 4, 2013, Gail submitted a BP-9 "Request for Administrative Remedy" to J.C. Holland, Warden of USP-McCreary. [R. 1-1, p. 2] In that administrative remedy request, Gail did not challenge either his disciplinary conviction or the imposition of sanctions. Instead, Gail alleged that various USP-McCreary failed to protect him by allowing a dangerous weapon to be misplaced in such a way that the weapon fell into the hands of Inmate J.W., who then used that weapon to inflict serious bodily injuries on him. [ Id. ] Gail did not ask that his disciplinary conviction and sanctions be set aside; instead, he asked that the employee or employees responsible for supervising tools and for inspecting cells (to ensure that inmates do not have access to dangerous contraband or weapons) be fired, and that stricter policies be put in place "... to prevent dangerous tools from being used as weapon." [ Id. ]

On March 26, 2013, Warden Holland denied Gail's administrative remedy request, explaining that all prison staff members are subject to various BOP regulations which proscribe certain types of conduct, but that prisoners are not entitled to the result of investigations into staff misconduct. [ Id., p. 1] Gail then appealed to the BOP Regional Office, arguing that the prison staff did not respond appropriately to an emergency situation. [ Id., p. 5] On April 8, 2013, the BOP Regional Office denied Gail's appeal, finding no ...

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