United States District Court, E.D. Kentucky, Southern Division, Pikeville
OSCAR F. PINA, Plaintiff,
J. TERRY, et al., Defendants.
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT EASTERN
DISTRICT OF KENTUCKY
Pina is a former federal inmate previously confined at the
United States Penitentiary - Big Sandy in Inez, Kentucky.
Pina filed a pro se civil rights complaint pursuant
to Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971) complaining that officials from the
Bureau of Prisons (“BOP”) removed him from the
Residential Drug Abuse Program (“RDAP”) because
of his race. [R. 1]
defendants - Drug Treatment Specialist J. Terry, RDAP
Coordinator Dr. Saunders, and Chief of Psychology Dr. La
Fever - have filed a motion to dismiss the complaint. [R. 20]
Because Pina is proceeding without counsel, in September 2018
the Court acted sua sponte to extend his response
period from three weeks to six weeks. In that Order the Court
cautioned Pina that a failure to file a timely response is
grounds for dismissal for failure to prosecute, or
alternatively the Court could treat his silence as a
concession that the defendants' factual assertions are
true when deciding their summary judgment motion. [R. 21]
However, Pina's November 2, 2018 deadline to file a
response came and went over one month ago and he still has
not filed any response to their motion.
continued silence in the face of both the defendants'
dispositive motion and the Court's prior warning is
sufficient ground to conclude that he has abandoned
prosecution of his claims: “if a plaintiff fails to
respond or to otherwise oppose a defendant's motion [to
dismiss], then the district court may deem the plaintiff to
have waived opposition to the motion.” Humphrey v.
U.S. Attorney Gen. Office, 279 Fed.Appx. 328, 331 (6th
Cir. 2008). Pina's complaint is therefore subject to
dismissal pursuant to Federal Rule of Civil Procedure 41(b).
defendants are also entitled to summary judgment. Of course,
the Court cannot “grant summary judgment in favor of
the movant simply because the adverse party has not
responded.” Carver v. Bunch, 946 F.2d 451, 455
(6th Cir. 1991). Instead, the Court still holds “the
moving party to the burden established by the plain language
of [Civil] Rule 56.” Guarino v. Brookfield Tp.
Trustees, 980 F.2d 399, 404-05 (6th Cir. 1992). In
performing its task the Court may, however, “rely on
the moving party's unrebutted recitation of the evidence,
or pertinent portions thereof, in reaching a conclusion that
certain evidence and inferences from evidence demonstrate
facts which are ‘uncontroverted.'”
Guarino, 980 F.2d at 410. It need not “comb
the record from the partisan perspective of an advocate for
the [nonmoving] party.” Id.
complaint, Pina asserts that the defendants removed him from
the RDAP without formally charging him with misconduct. Pina
states without any meaningful explanation that he “was
targeted based on race..., ” and claims violation of
his right to equal protection under the law. [R. 1, Page ID
#3-5] Pina filed an inmate grievance regarding his removal,
with the BOP responding that he was twice expelled from RDAP,
the first time because he was found with a weapon in the unit
while engaging in gang activity, and the second time because
of repeated incidents of insolence, hostility, and damage to
property. [R. 1-1, Page ID #10-22]
move for summary judgment on numerous grounds, but one is
enough to resolve the motion in their favor. The defendants
argue that Pina's conclusory allegations, devoid of any
specific facts to support them, are insufficient to state an
equal protection claim. [R. 20-1, Page ID #309-10] The Court
agrees. To state a viable equal protection claim “a
plaintiff must allege and show that a government actor took
adverse action against him ‘with a discriminatory
intent and purpose.'” Goller v. Ohio Dep't
of Rehab. & Corr., 285 Fed.Appx. 250, 255 (6th Cir.
2008); see also Brand v. Motley, 526 F.3d 921, 924
(6th Cir. 2008). To do so, a plaintiff may allege facts that
indicate discrimination directly, such as through blatantly
discriminatory remarks by decision makers, or indirectly,
such as through more favorable treatment given to persons
outside of the plaintiffs suspect class. Umani v. Mich.
Dept. of Corr., 432 Fed.Appx. 453, 458-61 (6th Cir.
2011). Pina's complaint makes no such allegations. He
states only that he was “targeted based on race,
” but does not identify his own race or point to any
actions of the defendants indicative of an intent to
discriminate based upon race. Where, as here, a complaint
“includes conclusory allegations of discriminatory
intent without additional supporting details[, it] does not
sufficiently show that the pleader is entitled to
relief.” Nali v. Ekman, 355 Fed.Appx. 909,
912-13 (6th Cir. 2009) (citing Ashcroft v. Iqbal,
556 U.S. 662, 680-81 (2009)).
it is ORDERED as follows:
motion of defendants J. Terry, Dr. Saunders, and Dr. La Fever
to dismiss the complaint [R. 20] is GRANTED.
Court will enter an appropriate judgment.
matter is STRICKEN ...