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Clark v. United States

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

April 25, 2018

LONDON TONY T. CLARK, Plaintiff,
v.
UNITED STATES OF AMERICA, et al, Defendants.

          MEMORANDUM OPINION & ORDER

          GREGORY F VAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         Inmate Tony T. Clark has filed a pro se complaint asserting civil rights claims against federal officials pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). [R. 1.] This matter is before the Court to conduct the preliminary screening required by 28 U.S.C. §§ 1915(e)(2), 1915A. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).

         I

         Clark indicates that on February 24, 2016, he was being housed in a cell in the segregation unit. On that day, Lt. Altizer asked Clark whether he was refusing to take a cellmate. Clark at first professed ignorance about why he was being asked the question, but in the face of continued and direct questioning regarding his willingness to accept a cellmate, he simply refused to answer. [R. 1 at 2.]

         Clark alleges that Lt. Altizer then became belligerent, stating that:

... you Moorish-American Moslem (sic) bitches will do what the f*** I tell you to do and also Clark you can't use the name Bey in our prison system and by the way I hear that you're an ex-affiliate member of the G.D.'s and I want you to know that you're going to do what the f*** I say [to] do because this is a Christian nation and we don't respect Fezz wearing muslims and f****ts.

         [R. 1 at 2-3.] After Lt. Altizer had left the area, an unidentified associate warden again asked Clark whether he would accept a cellmate, to which he replied he had no comment. Lt. Altizer then returned with a camcorder and recorded as a use-of-force team entered Clark's cell, removed him from his cell, and transferred him to another room. At this time, a member of that team replaced Clark's clothing with new garments and applied restraints. Lt. Altizer applied a belly-chain “and tightened [it] as much as he could” before connecting it to Clark's hand restraints. [R. 1 at 3-4.]

         Clark indicates that both Lt. Altizer and R.N. Free checked his hand restraints and determined that they were not too tight. Clark was then placed in a cell in the segregation unit with a cellmate. Two hours later Clark complained that his hand restraints were too tight, but P.A. Lawson checked them and concluded that they fine. [R. 1 at 5.] Lt. Mullins and P.A. Lawson checked his hand restraints when Clark again complained that they were too tight. Clark indicates that he was in hand restraints for a total of nine hours. [R. 1 at 6.]

         II

         As a preliminary matter, Clark identifies Warden Ormond as a defendant in this action, but he makes no allegation of any kind against him. In an action under Bivens, the plaintiff “must allege that the defendant [was] personally involved in the alleged deprivation of federal rights.” Nwaebo v. Hawk-Sawyer, 83 Fed.Appx. 85, 86 (6th Cir. 2003) (citing Rizzo v. Goode, 423 U.S. 362, 373-77 (1976)). Clark makes no such allegation here. Because the warden is not liable under Bivens for the alleged misdeeds of his subordinates merely by virtue of his supervisory capacity, Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009), the claims against Warden Ormond must be dismissed.

         Clark also named the United States as a defendant in this action, and seeks damages against the named officers in their official capacities. [R. 1 at 11] However, Bivens authorizes only individual capacity suits against federal officers for violations of civil rights, it does not waive the sovereign immunity enjoyed by the United States and its agencies for constitutional torts. Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 370 (6th Cir. 2011) (Bivens claims may be asserted against federal officials only in their individual capacities); Okoro v. Scibana, 63 Fed.Appx. 182, 184 (6th Cir. 2003). And of the many federal statutes invoked by Clark as a basis for his suit [R. 1 at 1], the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 is not among them. The United States will therefore be dismissed as a defendant to this action.

         In his complaint, Clark sets forth a wide variety of legal claims arising out of these events, as well as claims untethered to the factual allegations set forth by Clark in the body of his complaint. [R. 1 at 7-10] The Court will address these claims in the order presented.

         First, Clark contends without explanation that unidentified charges against him were “trumped up” and caused him to temporarily lose unidentified privileges. [R. 1 at 7.] Clark does not identify anywhere in his complaint what offense he was charged with, why it was “trumped up, ” which officer brought the charge, or what privileges were suspended. His complaint therefore fails to satisfy the minimum pleading requirements set forth in Federal Rule of Civil Procedure 8. In addition, if Clark suffered the loss of good conduct time as a result of the charges, he has failed to allege that the disciplinary conviction has been overturned as required by Edwards v. Balisok, 520 U.S. 641, 645 (1997). If the only privileges suspended were the loss of commissary, phone, visitation, movies or recreation, see BOP Program Statement 5270.09 Table 1 (July 8, 2011) (setting forth available sanctions for 200- and 300-level disciplinary offenses), such loss does not violate the Eighth Amendment. Cf. Overton v. Bazzetta, 539 U.S. 126, 136-37 (2003). The Eighth Amendment “does not mandate comfortable prisons, ” but only requires prison officials to provide inmates with “the minimal civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981).

         Second, Clark appears to contend that Lt. Altizer's derisive comments about him being a Moorish-American Muslim constituted an impermissible impediment to the free exercise of his religious beliefs in violation of the First Amendment. [R. 1 at 8.] As a threshold matter, the Supreme Court has never extended the implied cause of action under Bivens to free exercise claims under the First Amendment. Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that Bivens extends to First Amendment claims.”). The Supreme Court has expressly refused to find such an implied cause of action where a detailed remedial scheme appropriate to address the wrong already exists. Bush v. Lucas, 462 U.S. 367, 368 (1983) (refusing to extend Bivens to a First Amendment free speech claim in federal civil service context). Such a detailed scheme is found in the Religious Freedom Restoration Act, 42 U.S.C. ยง 2000bb-1(a), and the availability ...


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