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Davidson v. Federal Bureau of Prisons

United States District Court, E.D. Kentucky

March 31, 2017

CLIFTON B. DAVIDSON and ALFRED L. JENNINGS, Plaintiffs,
v.
FEDERAL BUREAU OF PRISONS, Defendant.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood Senior U.S. District Judge

         This matter is before the Court upon the motion of the Bureau of Prisons (“BOP”) to dismiss the complaint, or in the alternative, for summary judgment. [R. 20] Plaintiffs Clifton Davidson and Alfred Jennings have filed their response to the motion, to which the BOP has replied. [R. 34, 38] The plaintiffs also filed a motion to strike the declaration of Alex White, a request which has been fully briefed. [R. 32, 37, 39] The plaintiffs separately filed a motion to amend their complaint, and the parties have concluded their briefing on this motion as well. [R. 46, 49, 51] These matters are therefore ripe for decision.

         I

         When they filed their complaint in this action, Davidson and Jennings were both prisoners at the Federal Medical Center in Lexington, Kentucky (“FMC-Lexington”), although Jennings was released from federal custody in October 2016. [R. 45] The gravamen of their complaint is that the BOP poorly administers or misappropriates funds that are supposed to be used to benefit inmates. [R. 1 at ¶¶10-83] They also assert two satellite claims arising from their dissatisfaction with the BOP's handling of their inmate grievances on the subject [R. 1 at ¶¶84-153], as well as the BOP's response to one of seven requests for documents Davidson made under the Freedom of Information Act, 5 U.S.C. § 552a (“FOIA”) [R. 1 at ¶¶ 154-164]. The plaintiffs seek monetary damages and costs, as well as declaratory and injunctive relief. [R. 1 at 25-26]

         Davidson and Jennings assert that as federal inmates they are beneficiaries of two trust funds administered by the BOP: the “Deposit Fund, ” which holds money deposited for use by individual inmates (basically, a “checking account” for each inmate), and the “Trust Fund, ” which, among other things, holds proceeds from the sale of items sold in the prison's commissary. See BOP Program Statement 4500.11, CN-1 Ch. 1, § 1.1 (Dec. 16, 2016). This case involves only the latter, commonly referred to as the Commissary Fund. The plaintiffs allege that these funds are used to pay the salaries of certain prison guards and compensation to some of the inmates working prison jobs; to buy recreational, entertainment, and computer equipment in the facility for use by both guards and prisoners; and to sponsor certain educational programs and interior improvements to the facility.

         However, plaintiffs complain that prison guards regularly receive pay increases while inmate pay has remained stagnant for decades, and starting in December 2014, the regular and “bonus” pay for inmates was reduced significantly. They also state that prices for goods in the commissary continue to increase; the BOP does not take care of the equipment purchased for inmates and discards good equipment; and the BOP has used some funds exclusively for the benefit of prison guards. Finally, Jennings and Davidson allege that prison wardens sometimes transfer trust funds from their institution to other facilities or regions in an effort to curry favor and increase their chances at promotion. [R. 1 at 3-10, 18-19]

         The plaintiffs assert several claims related to the trust fund. First, in Counts Two and Six Jennings and Davidson separately assert that the reduction in their compensation from their inmate jobs violates their due process rights. Second, in Count Four they collectively assert that the BOP violates its duties as a trustee by using trust funds mostly to benefit staff members instead of inmates. Third, in Counts One and Five Jennings and Davidson each contend that the transfer of funds to other prisons is an abuse of trustee discretion. [R. 1 at p. 20-23]

         Upset about this state of affairs, each plaintiff filed separate inmate grievances about the reduction in their pay and the running of these funds, but the grievance process only frustrated Davidson and Jennings further. The BOP's administrative remedy program requires inmates to first attempt to resolve their concerns informally, but the plaintiffs felt that prison officials only gave them the runaround. Davidson and Jennings further complain that their formal grievances and appeals were not received until several weeks after they sent them for filing, were improperly rejected as untimely or for failure to include a copy of the decision appealed from, and were not addressed by the BOP within the time frames established by its own regulations. Plaintiffs assert that as a result of these circumstances inmates incur extra costs for postage and office supplies as well as uncertainty regarding when they may proceed to file suit. [R. 1 at p. 10-18] In Counts Three and Seven, Jennings and Davidson contend that the BOP's failure to adhere to the requirements of the inmate grievance process violates their due process rights. [R. 1 at p. 22, 23-24]

         Davidson also filed a request under the Freedom of Information Act for documents detailing how the BOP uses these funds. While he states that he received almost all of what he asked for, he found incredible the BOP's response that no documents exist to confirm his belief that inmate trust funds were used to improve the dining area used by staff at FMC - Lexington. Davidson filed an appeal regarding this omission, but states that he never received a response. [R. 1 at 19-20] In Count Eight, Davidson contends that the BOP violated FOIA by failing to produce documents he believes exist, but the BOP has stated do not. [R. 1 at p. 24-25]

         Because the plaintiffs mention it in their response to the summary judgment motion [R. 34 at 6], the Court pauses here to address the one-sentence suggestion in their complaint that they wished to have this matter proceed as a class action. [R. 1 at 25] In their complaint, the plaintiffs did not attempt to define the scope of the class or the claims encompassed within it, allege or argue that they satisfy the requirements for class certification set forth in Federal Rule of Civil Procedure 23(a)(1)-(4), or identify the type of class action appropriate under Rule 23(b)(1)-(3). A complaint that fails to satisfy either one of these substantive criteria does not warrant class certification. See Wal-Mart v. Dukes, 564 U.S. 338, 350 (2011) (“Rule 23 does not set forth a mere pleading standard.”); Newsom v. Norris, 888 F.2d 371, 381 (6th Cir. 1989). As a procedural matter, they also never filed a formal motion for such certification. Moore v. Curtis, 68 F. App'x 561, 563 (6th Cir. 2003). This matter could not have proceeded as a class action in any event: pro se plaintiffs are not able to adequately and fairly represent the class. Cf. Palasty v. Hawk, 15 F. App'x 197, 200 (6th Cir. 2001). The Court therefore limits its discussion to the claims asserted by Davidson and Jennings.

         II

         In its motion for summary judgment, the BOP contends that neither plaintiff properly exhausted his administrative remedies with respect to his claims, whether under the BOP's internal Inmate Grievance Program or under FOIA. [R. 20-1 at 3-8; 9-10] It also notes that, as a federal agency, it is entitled to sovereign immunity from damages claims [R. 20-1 at 8-9] and that prisoners have no constitutional right to either a prison job or any wages for their work [R. 20-1 at 9]. Finally, the BOP requests summary judgment on Davidson's FOIA claim because it conducted a reasonable search for the records he sought and discovered none. [R. 20-1 at 10-12]

         For their part, Jennings and Davidson assert pursuant to Federal Rule of Civil Procedure 56(d) that discovery is necessary before they can respond to the BOP's motion. They also dispute the BOP's characterization of their claims and deny that they have sought monetary relief, while nonetheless contending the BOP has waived its immunity to a damages claim. [R. 34 at 2-7; 21-34] Their primary contention is that they have exhausted their administrative remedies, and that any untimeliness or irregularity in the processing of their inmate grievances was caused by the BOP's failure to adhere to its own regulations. [R. 34 at 7-20; 35-44] Finally, Davidson asserts that the FOIA search must have been unreasonable because a reasonable search would necessarily have revealed the documents he is certain exist. [R. 34 at 45-48]

         Before addressing the substance of the BOP's motion, the Court must first resolve two preliminary matters. First, the parties dispute the nature of Jennings and Davidson's claims and the relief they seek. The BOP characterizes Counts One, Two, Four, and Five of the plaintiffs' complaint as asserting due process claims arising out of a reduction in their pay; and Counts Five, Six, and Seven as due process claims related to the BOP's administration of its inmate grievance program. It also notes Davidson's FOIA claim in Count Eight, but makes no attempt to characterize Count Three. [R. 20-1 at 2-3] For their part, the plaintiffs suggest that their only due process claim relates to the inmate grievance program, and that their “claims brought regarding the Trust Fund (and including pay from the Trust Fund) are brought under trust law and not as a strictly-speaking Constitutional claim.” [R. 34 at 4-5, 21, 23]

         Atypical for most pro se complaints, the plaintiffs' complaint is extensive, detailed, and for the most part, fairly precise. It also establishes that neither party accurately characterizes the claims Jennings and Davidson assert in their complaint. As noted by the Court above, five of the counts are directly related to the operation of the trust fund and/or their inmate pay. Counts Two and Six - expressly titled “Violation of Due Process as to Jennings (Pay)” and “Violation of Due Process as to Davidson (Pay)” respectively - assert that each of the plaintiffs possessed a “protected property interest in his pay” and that the “BOP has violated the due process rights” of the plaintiffs by reducing their pay. These claims are also devoid of any suggestion that the BOP's conduct violated its duties as a trustee, a type of claim the plaintiffs clearly and expressly assert in other counts. [R. 1 at 20-21, 23] The foregoing refutes the plaintiffs' assertion that these counts assert claims under trust law and the BOP's assertion that Count Six relates to the inmate grievance program.

         Unlike those two counts, Count Four is entitled “Breach of Trust Fund Duties (Both Plaintiffs), ” refers to the law of trusts, alleges that the trust funds are being used to benefit BOP staff rather than inmates, and contends that these actions are a violation of the discretion afforded to the trustee. [R. 1 at 22-23] This claim arises solely under trust law.

         Counts One and Five are more ambiguous. In each, the plaintiffs allege that “the taking of his pay was not a measure in accord with due process ...” However, each count is titled as “Violations of Trust Fund ..., ” a clear contrast to counts expressly identified as due process claims, and they conclude with the assertion that the BOP actions are “a breach of the trust and an abuse of [trustee] discretion ...” [R. 1 at p. 20-21, 23] In light of the express labelling chosen by the plaintiffs and their focus on the alleged breach of trustee duties, these counts assert claims arising, if at all, under trust law.

         The parties appear to be in agreement that Counts Three and Seven assert due process claims regarding the BOP's operation of the inmate grievance program, and that Count Eight encapsulates Davidson's FOIA claim. The nature of these claims is readily apparent from the complaint itself. [R. 1 at p. 22, 23-25]

         As a separate matter, although the plaintiffs' protest that they “do not seek money damages from anyone” in response to the BOP's assertion of sovereign immunity [R. 34 at 4-5], the complaint contradicts that assertion, as it expressly includes a demand for “[a]ctual and compensatory damages to both plaintiffs ...” [R. 1 at 26], a clear request for monetary relief. Notably, the plaintiffs also request injunctive relief, a remedy that - depending upon the nature of the relief sought - does not necessarily implicate the federal government's sovereign immunity. These matters are discussed more fully below.

         Having established the nature of the claims Davidson and Jennings actually assert, the Court must next address Davidson's contention that he needs discovery (albeit only with respect to his FOIA claim) before the Court decides the BOP's motion for summary judgment. [R. 34 at 2-3] The Federal Rules of Civil Procedure permit a party resisting a summary judgment motion to request that the Court defer a decision on the motion if she can demonstrate, by affidavit or declaration, that she needs limited discovery to obtain certain specific facts to justify her opposition to the motion. Fed.R.Civ.P. 56(d). Davidson's request, however, fails on both procedural and substantive grounds.

         Procedurally, the Rule requires the nonmovant to file an affidavit or declaration to assert and explain that it needs additional discovery. Davidson incorporated his request for discovery into his response to the BOP's summary judgment motion, but he filed no affidavit or declaration in support of it. The plaintiffs filed numerous affidavits in support of their claims [R. 34-5], but none of those - including Davidson's fourteen page affidavit [R. 34-5 at 11-24] - assert the need for additional discovery. Because Davidson did not file an affidavit or declaration which “indicate[s] to the district court [the party's] need for discovery, what material facts it hopes to uncover, and why it has not previously discovered the information, ” Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000), he has failed to properly invoke Rule 56(d).

         Substantively, Davidson bears the burden of demonstrating why discovery is necessary. Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004). The nonmovant must do more than make “general and conclusory statements ... regarding the need for more discovery”; instead, she must “show how an extension of time would have allowed information related to the truth or falsity of the [document] to be discovered.” Ball v. Union Carbide Corp., 385 F.3d 713, 720 (6th Cir. 2004) (citing Ironside v. Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir. 1999)).

         Here, the BOP has moved to dismiss Davidson's FOIA claim on the grounds that he failed to fully and properly exhaust it and because its search for documents was reasonable. [R. 20-1 at 7-8, 10-12] Davidson appears to seek “records” - which he does not clearly define by date range, scope, source, or subject matter -that he contends are required to be kept by unidentified BOP budgeting policies, and which the BOP has previously stated it was unable to locate. Even if these documents do exist, they would not be required for Davidson to respond to the BOP's motion, because the contents of these documents would not make it any more or less likely that he exhausted his administrative remedies under FOIA or that the BOP's search conducted at his behest was not reasonable. And a continuance for discovery is not necessary to respond to purely legal arguments where the controlling facts are not in dispute. Cf. Teck Metals, Ltd. v. Certain Underwriters at Lloyd's, London, 735 F.Supp.2d 1246, 1256 (E.D. Wash. 2010). The Court may therefore proceed to consider the substance of the BOP's motion as it relates to Davidson's FOIA claim alongside its consideration of the balance of the plaintiffs' claims.

         III

         The Court must treat the non-jurisdictional aspects of the BOP's motion to dismiss the complaint as a motion for summary judgment under Rule 56 because it has attached and relied upon documents and declarations extrinsic to the pleadings in support of it. Fed.R.Civ.P. 12(d); Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). A motion under Rule 56 challenges the viability of the another party's claim by asserting that at least one essential element of that claim is not supported by legally-sufficient evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). A party moving for summary judgment must establish that even viewing the record in the light most favorable to the nonmovant, there is no genuine dispute as to any material fact and that she is entitled to a judgment as a matter of law. Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014).

         The moving party does not need her own evidence to support this assertion, but need only point to the absence of evidence to support the claim. Turner v. City of Taylor, 412 F.3d 629, 638 (6th Cir. 2005). The responding party cannot rely upon allegations in the pleadings, but must point to evidence of record in affidavits, depositions, and written discovery which demonstrates that a factual question remain for trial. Hunley v. DuPont Auto, 341 F.3d 491, 496 (6th Cir. 2003); United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993) (“A trial court is not required to speculate on which portion of the record the non-moving party relies, nor is there an obligation to ‘wade through' the record for specific facts.”).

         The court reviews all of the evidence presented by the parties in a light most favorable to the responding party, with the benefit of any reasonable factual inferences which can be drawn in his favor. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). If the responding party's allegations are so clearly contradicted by the record that no reasonable jury could adopt them, the court need not accept them when determining whether summary judgment is warranted. Scott v. Harris, 550 U.S. 372, 380 (2007). The court must grant summary judgment if the evidence would not support a jury verdict for the responding party with respect to at least one essential element of his claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). If the applicable substantive law requires the responding party to meet a higher burden of proof, his evidence must be sufficient to sustain a jury's verdict in his favor in light of that heightened burden of proof at trial. Harvey v. Hollenback, 113 F.3d 639, 642 (6th Cir. 1997); Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1444 (6th Cir. 1993).

         A

         The Court first addresses the BOP's assertion that Jennings and Davidson failed to exhaust their administrative remedies with respect to any of their claims, and hence they must be dismissed. [R. 20-1 at 3-8] Federal law requires a prisoner challenging the conditions of his confinement pursuant to 42 U.S.C. 1983, Bivens, or other federal law to properly exhaust all available administrative remedies before filing suit in federal court. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532 (2002); Napier v. Laurel County, 636 F.3d 218, 220 (6th Cir. 2011). Claims that are not fully and properly exhausted before suit is filed must be dismissed. Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”).

         The prisoner must exhaust those remedies “properly, ” meaning in full compliance with the agency's deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 90 (2006); Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009). If a prisoner's grievance or appeal is rejected on procedural grounds and he is afforded the opportunity to cure the defect that led to the rejection, the prisoner must avail himself of that opportunity: he may not abandon further efforts at compliance. Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999) (“An inmate cannot simply fail to file a grievance or abandon the process before completion and claim that he has exhausted his remedies or that it is futile for him to do so.”); Jernigan v. Stuchell, 304 F.3d 1030, 1032-33 (10th Cir. 2002) (inmate failed to exhaust administrative remedies when he failed to cure the deficiency which led the prison to reject grievance appeal).

         1.

         Jennings filed only one grievance related to this case. On February 18, 2015, Jennings filed a grievance with the warden complaining that his pay had been cut during the prior fall and requesting return to his prior pay grade. Jennings attached to his grievance a copy of a December 22, 2014, e-mail that he had sent to an assistant warden complaining about the reduction in his pay. [R. 34-3 at 21-22] Jennings grievance was assigned number 811241, and on February 20, 2015, was rejected on the ground that it was filed more than twenty days after the events complained of. [R. 34-3 at 23]

         On March 10, 2015, Jennings appealed to the BOP's Mid-Atlantic Regional Office (“MARO”). [R. 34-3 at 24-26] Jennings' appeal was rejected by MARO on March 18, 2015, because it was not received until March 17, 2015, five days after the time permitted to appeal had passed, and because he had not included copies of his formal grievance and the warden's response. The rejection notice advised Jennings that he could submit a note from staff to explain the untimely filing to cure the deficiency that led to the rejection. [R. 34-3 at 27]

         Jennings chose not to do so, instead challenging MARO's rejection on appeal to the Central Office on March 29, 2015. [R. 34-3 at 28-29] The Central Office rejected the appeal on May 18, 2015, concluding that the warden and MARO ...


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