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Greene v. U.S. Department of Justice

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

October 22, 2019

U.S. DEPARTMENT OF JUSTICE, et al., Defendant.


          Gregory F. Van Tatenhove United States District Judge

         Plaintiff Michael Greene is an inmate confined at the United States Penitentiary (“USP”)-Canaan in Waymart, Pennsylvania. Proceeding without an attorney, Greene filed a civil rights action against prison officials pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (“FTCA”), and Kentucky state law. [R. 6, 6-1]

         By separate order, the Court has granted Greene's motion to proceed without prepayment of the filing fee. [R. 9] Thus, the Court must conduct a preliminary review of Greene's complaint pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A. A district court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997), abrogated on other grounds, Jones v. Bock, 549 U.S. 199 (2007).

         The Court evaluates Greene's complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts the plaintiff's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). However, the principles requiring generous construction of pro se pleadings are not without limits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Wilson v. Lexington Fayette Urban County Government, No. 07-cv-95-KSF, 2007 WL 1136743 (E.D. Ky. April 16, 2007). A complaint must set forth claims in a clear and concise manner, and must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010). See also Fed. R. Civ. P. 8. In addition, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555.

         Moreover, although the Court has an obligation to liberally construe a complaint filed by a person proceeding without counsel, that obligation does not extend so far as to require or permit it to create arguments or claims that the plaintiff has not made. Coleman v. Shoney's, Inc., 79 Fed.Appx. 155, 157 (6th Cir. 2003) (“Pro se parties must still brief the issues advanced with some effort at developed argumentation.”). Thus, vague allegations that one or more of the defendants acted wrongfully or violated the plaintiff's constitutional rights are not sufficient. Laster v. Pramstaller, No. 08-CV-10898, 2008 WL 1901250, at *2 (E.D. Mich. April 25, 2008). The Court is not required to create a claim for the plaintiff, nor to “conjure up unpled allegations.” Moorman v. Herrington, No. CIV A 4:08-CV-P127-M, 2009 WL 2020669, at *1 (W.D. Ky. July 9, 2009)(citations omitted).


         Before reviewing the substance of Greene's claims, the Court must first address the manner in which Greene has chosen to proceed in this litigation thus far. Greene's original complaint [R. 1] consists of a 10-page, single-spaced document typed in an extremely small font that purports to bring fifteen different types of claims against twenty-one different defendants at two different federal Bureau of Prisons (“BOP”) facilities, with no real effort to articulate which particular type of claim (e.g., excessive force, negligence, assault and battery, intentional infliction of emotion distress, etc.) is alleged against each individual defendant. In addition, Greene's claims are confusingly set forth in a narrative form that is rambling, repetitive, and often digresses into commentary offering Greene's own subjective theories and opinions on various practices and procedures followed by the BOP and the Department of Justice (“DOJ”). Because Greene's original complaint was not filed on a form approved for use by this Court as required by Local Rule 5.2(a)(4), the Court forwarded the appropriate form to Greene and directed him to re-file his complaint using the Court's form. [R. 5] The Court further instructed Greene to “describe the facts of his case, specifically identifying the people, dates, places, and actions which are relevant to his claims, and explain what he wants the Court to do.” [Id. (emphasis in original)]

         Ignoring the Court's instructions to describe only the facts of his claims, Greene re-filed his complaint using the form provided by the Court and incorporated his original complaint by reference. [R. 6, 6-1] This approach directly contradicts the Court's clear instructions, which were actually intended to help Greene simplify his complaint so that it might comply with the requirements of the Federal Rules of Civil Procedure. Indeed, Greene's “amended” complaint continues to run afoul of Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to set forth its claims in a manner that is “short and plain.” See generally Fed. R. Civ. P. 8(a). Despite these shortcomings, the Court will nevertheless review Greene's claims in order to move this matter forward.[1]


         To be sure, Greene's allegations sweep broadly, alleging a variety of claims against twenty-one defendants at two different federal facilities based upon multiple separate incidents.[2]However, from what the Court is able to ascertain, Greene's complaint arises from several separate incidents that he claims occurred throughout 2017 and 2018 at both USP-Big Sandy in Inez, Kentucky, and at USP-McCreary in Pine Knot, Kentucky.

         Greene alleges that, in November 2017, Defendant Officer Amanda Hirst watched him shower, which he claims female officers are not allowed to do. He further alleges that, in December 2017, Defendant Officer Uzley strip-searched Greene while Officer Hirst watched. Greene claims that he was then retaliated against for a complaint he filed against Officers Hirst and Uzley alleging violations of the Prison Rape Elimination Act (“PREA”), 42 U.S.C. § 15601 et seq. based upon these incidents. Specifically, he alleges that Officers Hirst and Uzley threatened and intimidated him; Officer Ferguson used excessive force against him in an incident which he claims was orchestrated by Officer Hirst; and Officer Hirst, Officer Ferguson, and two other male officers conspired to issue a fraudulent incident report issued against Greene falsely accusing him of threatening Officer Hirst.

         Greene further alleges that, after he notified Lt. Kuntzman of “serious staff misconduct” related to Officers Hirst and Uzley, Lt. Kuntzman retaliated against him. According to Greene, Lt. Kuntzman falsely cited Greene's use of a window covering in his cell as justification for spraying Greene's cell with an excessive amount of “OC spray, ” which cut off Greene's breathing and burned his skin, which Greene claims was an excessive use of force. He further claims that, after he was extracted from his cell and taken to a shower area for decontamination, Lt. Kuntzman and staff intentionally made the water too hot so that he could not shower, then denied Greene shoes, forcing him to walk barefoot through an area contaminated with human feces and urine.

         He claims that, after Greene returned to his cell, he covered his window again, at which point Lt. Kuntzman and staff returned to his cell, led him to the USP-Big Sandy medical department and placed him in four-point restraints. He then claims that, after Greene told Lt. Armes that he had not been allowed to properly decontaminate after he had been sprayed with the OC spray, Lt. Armes told him that he would allow Greene to decontaminate if Greene engaged in a sexual act with Officer Mitchell. Greene claims that he refused, but that Lt. Armes continued to threaten Greene with sexual assault. He claims that this incident constitutes “calculated torture” and was the result of a conspiracy among Lt. Meade, Lt. Kuntzman, Lt. Armes, USP-Big Sandy's Captain, Warden Kizziah, Officer Mitchell, and John Does, as these Defendants all had a duty to protect Greene from the use of excessive force, cruel and unusual punishment and torture and/or report that it had occurred. Greene alleges that, by failing to do so, each Defendant became “complicit conspirators” in a conspiracy to violate Greene's “civil rights, constitutional rights, [Greene's] rights related to Kentucky Laws and the Federal Tort Claims Act.” Greene then claims that he was forced to return to his cell that had been sprayed with “O.C. spray gas, ” but had not been decontaminated.

         Next, Greene alleges that, in February 2018, Greene was interviewed by Defendant Special Agent McMahan (whom Greene identifies as a special agent with the DOJ's Office of the Inspector General) regarding Greene's claims of sexual misconduct. Greene states that he asked Special Agent McMahan why it had taken him so long to show up and McMahan responded, “This is the federal government everything moves slow.” Greene alleges that the failure of the DOJ to timely intervene after his complaints caused Greene's physical assault by Officer Ferguson. He also alleges that the DOJ failed to properly supervise Special Agent McMahan to ensure that he timely responded to Greene's PREA complaints. Greene also refers to some difficulty he encountered obtaining BP-8 forms from Counselor Lockwood and Associate Warden Garza, although neither Lockwood nor Garza are identified as Defendants.

         Greene alleges that he was then transferred to USP-McCreary. With respect to the staff at USP-McCreary, Greene alleges that: 1) he was strip-searched by Officer Gadsbury “for no legitimate reason” while Gadsbury stared at Greene's private parts; 2) Dr. Parsons failed to provide him with brochures and documents that he claims a non-profit organization had left with her to give to Greene, acting with deliberate indifference to Greene's mental health needs; 3) when questioned by “plaintiff B.M.” (it is unclear if this is a reference to Greene or another inmate), Warden Gregory Kizziah stated that an officer may stick his hands in the front of an inmates' pants during a pat search; 4) in May 2018, a nurse with USP-McCreary's medical department was deliberately indifferent to Greene's medical needs when he requested treatment for the burns he claims to have suffered at USP-Big Sandy.

         The remainder of Greene's complaint expresses dissatisfaction with a variety of the policies and practices of the DOJ and the BOP. For example, he alleges that the DOJ's practices with respect to PREA complaints are wholly inadequate, grossly negligent, and violate inmates' constitutional rights. He also complains of the BOP's policies regarding the use of chemical spray, four-point restraints, strip searches, pat downs, as well as its policies regarding sexual misconduct.

         Based on his allegations, Greene alleges the following claims (although it is not entirely clear which claims he alleges against which defendant): excessive force, cruel and unusual punishment, negligence, assault and battery, intentional infliction of emotional distress, torture, conspiracy to violate plaintiff's civil and constitutional rights, negligent hiring, training, supervising, evaluating and retention, conditions of confinement, inadequate and deliberately indifferent medical and mental health care, sexual harassment, sexual assault, failure to protect, invasion of privacy, and denial of due process. [R. 6-1 at p. 1] Greene seeks damages in the amount of $39, 700, 000.00. He further states that he is suing each named Defendant in their individual and official capacities.

         To be sure, it is not clear whether Greene has fully exhausted his administrative remedies with respect to any of his claims. He claims that he has “vigorously attempted” to do so, but his efforts have been thwarted by BOP staff. [R. 6-1 at p. 2] Moreover, in light of the vague nature of Greene's allegations, coupled with the lack of clarity regarding his efforts (if any) to pursue his administrative remedies, it appears possible that at least some of his claims are barred by the applicable statute of limitations. However, these are affirmative defenses and it is not clear from the face of his complaint the extent to which Greene's administrative remedies have been exhausted, nor whether his complaint was timely filed. Accordingly, the resolution of these issues must wait for another day. Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013).


         A. Greene's Tort Claims

         To the extent that Greene seeks to pursue claims sounding in tort law (i.e., negligence, assault and battery, intentional infliction of emotional distress, negligent hiring, medical malpractice, sexual harassment, and/or invasion of privacy), claims predicated upon the negligence or wrongful acts or omissions of federal employees acting within the scope of their employment may only be pursued under the Federal Tort Claims Act, 28 U.S.C. § 2670 et seq. (“FTCA”). This includes Greene's claims based on his allegations that various BOP and DOJ policies (such as the policies regarding sexual misconduct, investigation of PREA complaints, reporting policies, use of chemical spray, use of restraints, and prisoner “pat down” policies) were either negligently or wrongfully enforced by various BOP and DOJ officials.

         The “FTCA clearly provides that the United States is the only proper defendant in a suit alleging negligence by a federal employee.” Allgeier v. United States, 909 F.2d 869, 871 (6th Cir. 1990) (citing 28 U.S.C. § 2679(a)). In addition, the Westfall Act, 28 U.S.C. § 2679(b)(1), immunizes federal employees from tort liability for actions taken within the scope of their employment. Roberts v. United States, 191 Fed.Appx. 338 (6th Cir. 2006). Because the remedy against the United States provided by the FTCA is exclusive with respect to claims that fall within its scope, a plaintiff may not circumvent its exhaustion or limitations provisions merely by pursuing a tort claim under state law directly against the federal employee in his or her individual capacity. 28 U.S.C. § 2679(b)(1).

         While Greene names the United States Bureau of Prisons and the United States Department of Justice/OIG as Defendants, he does not name the United States as a Defendant, as is required for an FTCA claim. However, in light of the generous construction allowed pro se pleadings, the Court will direct the Clerk of the Court to dismiss the United States Department of Justice/OIG and the Bureau of Prisons as Defendants and substitute the United States as the Defendant with respect to Greene's tort claims. While it is unclear whether Greene presented any of these tort-based claims to either the BOP or DOJ for administrative settlement prior to filing his claims, 28 U.S.C. § 2675(a), and/or whether Greene's claims are subject to dismissal for other reasons, a response is required from the United States before these issues may be considered further.

         B. Greene's Constitutional Claims

         Greene's complaint appears to invoke two provisions of the United States Constitution - the First Amendment (retaliation) and the Eighth Amendment (excessive force, failure to protect, and deliberate indifference).[3] To the extent that Greene alleges these constitutional claims against any of the Defendants, those claims may only be pursued under Bivens, which held that an individual may “recover money damages for any injuries...suffered as a result of [federal] agents' violation of” his constitutional rights. Bivens 403 U.S. at 397.

         Howaever, a Bivens claim is only properly asserted against individual federal employees in their individual capacities. Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991). Thus, Greene may not bring a Bivens claim against the United States, the BOP, or the DOJ. Correctional Services Corp. v. Malesko, 534 U.S. 61, 72 (2001)(“If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the ...

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