Perry v. Agric. Dept
| Decision Date | 16 April 2015 |
| Docket Number | Civil Action No. 6: 14-168-DCR |
| Parties | OCEANUS PERRY, Plaintiff, v. AGRICULTURAL DEPT., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Plaintiff Oceanus Perry is an inmate confined by the Bureau of Prisons ("BOP") at the United States Penitentiary ("USP")-McCreary, in Pine Knot, Kentucky. Proceeding without an attorney, Perry has filed a Complaint asserting various tort and constitutional claims under 28 U.S.C. § 1331 pursuant to the doctrine announced in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), against fifty-one defendants.1 [Record No. 1] The Court granted Perry's motion to proceed in forma pauperis by separate order. [Record No. 11] The Court has conducted a preliminary review of Perry's Complaint because he asserts claims against a government official and because he has been granted pauper status. 28 U.S.C. §§ 1915(e)(2)(B), 1915A. Because Perry 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, certain claims against five defendants2 may proceed, but the remaining defendants will be dismissed from this action.
Perry is serving several consecutive terms of imprisonment imposed in separate criminal cases. On September 2, 2003, in Cleveland, Ohio, Perry was sentenced to a 128-month prison term for armed bank robbery. United States v. Oceanus Perry, No. 4: 02-CR-92-SL-1 (N. D. Ohio 2002) []. On April 11, 2006, in Columbus, Ohio, Perry was sentenced to a 63-month prison term based on his convictions for bank robbery and for the illegal use of firearms. United States v. Oceanus Perry, No. 4:02-R-92-SL-1 (N. D. Ohio 2002) [].
In October 2007, Perry and three other inmates were indicted on several criminal charges in connection with an incident at USP-McCreary on September 17, 2007. UnitedStates v. Oceanus Perry, No. 7:07-CR-23-GFVT-EBA (E.D. Ky. 2007); [Record No. 1, therein]. On March 19, 2008, the jury convicted Perry on charges of assaulting a federal law enforcement officer and aiding and abetting in violation of 18 U.S.C. §§ 2 and 111(a)(1) and (b), and of being an inmate in possession of a prohibited object under 18 U.S.C. § 1791(a)(1). [Record No. 205, therein] Consequently, on September 30, 2008, Perry was sentenced to a 225-month prison term, to be served consecutively to his prior Ohio sentences. [Record No. 263, therein] Perry's conviction and sentence were affirmed on appeal. [Record No. 291, therein; see also United States v. Oceanus Perry, No. 08-6219, 401 F. App'x 56 (6th Cir. Nov. 4, 2010).]3
The following is a summary of the allegations set out in Perry's Complaint.4
On November 29, 2011, Perry arrived at the Federal Transfer Center in Oklahoma City, Oklahoma ("FTC-Oklahoma), but was separated from other intake inmates because "he was being housed in [the Special Housing Unit ("SHU")] due to a 2007 assault in Kentucky." [Record No. 1, p. 11, ¶¶ 84-85] Perry states that he was "subjected to metal detectors and X-ray body scans due to suspicion of alleged contraband," that he was placedin an observation cell, and forced to wear body restraints. [Id., ¶¶ 86-91] When Perry refused to sign a statement and form acknowledging his consent to a "digital and instrument rectal" search, prison officials informed Perry that his consent was not required because the BOP Regional Director had approved the rectal search. [Id., pp. 11-12, ¶¶ 91-94] Then, Perry claims, an unidentified prison official grabbed him by the back of the neck, forced him onto the table, and a doctor and other prison officials performed a physical rectal search. [Id., p. 12, ¶¶ 96-99] According to Perry, FTC-Oklahoma officials did not attempt less intrusive means to conduct the search. [Id., ¶ 95]
Perry alleges that the search did not produce any contraband. [Id., ¶ 100] Nonetheless, Lieutenant Daniels allegedly stated that the rectal examination "would be repeated until contraband was found." [Id., ¶ 101] Perry asserts that Lieutenant Daniels and several other unknown officers then conducted a metal detector and X-ray body scan, which produced negative results. [Id., pp. 12-13, ¶¶ 104-05] While Lieutenant Daniels was escorting the restrained Perry back to the observation cell, Lieutenant Daniels struck him in the groin. Perry further alleges that Officer "Lesser" or "Lessner" and other unidentified prison staff members threatened him, taunted him, and made sexual comments about the rectal search. [Id., p. 13, ¶¶ 106-07] Perry also claims that when he returned to the observation cell, he was strip-searched and ordered to submit to a urine analysis. [Id., ¶ 109] Perry claims that he was escorted to the SHU, where he requested medical treatment due to excessive rectal bleeding. [Id., ¶ 110]
Perry contends that, on December 1, 2011, he was returned to USP-McCreary, and that during intake screening, he "gave notice" of the alleged events on November 29, 2011, to Mrs. Read, the Unit 3 Case Manager; Dr. Figuroa; Special Investigative Services ("SIS") Lieutenant Baker; and Operations Lieutenant William Duck. [Record No. 1, p. 13, ¶ 112] Perry states that he informed EMT Christopher Griffis that he was experiencing "rectal pain, swelling of the testicle, and lower back pain." [Id., pp. 13-14, ¶¶ 115-16] Griffis allegedly responded that Physician Assistant Baker, his health care provider, would handle his medical complaints as part of his institutional orientation. [Id.]
Perry claims that SIS Agent Ronald Corriveau interviewed him "near Monday," (presumably, Monday, December 3, 2012), but that Corriveau declined to take his statement because FTC-Oklahoma Lieutenant Daniels had filed a report about the incident on November 29, 2011. [Id., p. 14, ¶ 119] Perry contends that, on December 20, 2011, an individual named Henekis Stoddard mailed him a copy of his statement concerning the alleged events of November 29, 2011, but that the USP-McCreary mailroom staff gave the mail to SIS staff, so Perry never received it. [Id., ¶ 120]
Perry alleges that on December 13, 2011, "Dr. Velaspues"5 came to his SHU Cell, asked him his BOP Register Number, and walked away, claiming that he had conducted a"chronic care" consultation. [Id., ¶ 121]6 Perry asserts that Physician Assistant Baker did not see him until January 2012. When he complained to Baker about his medical complications resulting from alleged events of November 29, 2011, Baker responded that she would not treat him because her computer showed no medical report. [Id., pp. 14-15, ¶¶ 123-24]
Perry also alleges that, on January 11, 2012, while he was confined in the SHU at USP-McCreary, he discovered that several items of his personal property were missing. The USP-Allenwood staff had inventoried and mailed these personal items to him. Perry complained to "R & D" Supervisor Sheila Mattingly and filed a tort claim. The tort claim was denied, according to Perry, because Lieutenant Thornburg lied about the receipt associated with the missing property. [Id., p. 16, ¶¶ 132-35]
Perry also claims that, in February 2012, UPS-McCreary Warden Richard B. Ives, Associate Warden Quay, Captain Christopher Maruka, and SIS Agent Ronald Corrivuea signed a "correspondence rejection notice," which allegedly stated that he would not be allowed to receive mail because he was a "terrorist and a police assaulter." [Id., p. 15, ¶¶ 125-27] Perry states that the BOP's inmate classification scheme does not include "terrorist" and he has not been convicted of crime involving terrorism. Perry asserts that the inaccurate notice was mailed to several individuals, including Henekis Stoddard, who stopped contacting him as a result. [Id., ¶¶ 128-29] Perry alleges that he filed a grievance with Warden Richard B. Ives and USP-McCreary Mailroom Supervisor Sheila Mattingly. [Id., ¶ 130] Mattingly purportedly responded that the SIS collected Perry's mail, screened it,and returned the mail several days later. The mailroom staff allegedly discards any mail that has a postmark of more than ten days earlier. [Id., ¶ 131]
Perry asserts that Lieutenant Daniels, located at FTC-Oklahoma, issued Incident Report No. 2239424 regarding the alleged events on November 29, 2011. [Record No. 1, p. 16, ¶ 136] While somewhat unclear, it appears that Lieutenant Daniels charged Perry with possessing contraband at FTC-Oklahoma. [Id., ¶ 140] In June 2012, Gary Mehler, a Disciplinary Hearing Officer ("DHO") at USP-McCreary, presided over the disciplinary hearing. Perry claims that he produced staff memoranda showing that Incident Report No. 2239424 was "fraudulent." [Id., ¶¶ 137-39] However, allegedly acting on instructions from Captain Maruka, DHO Mehler refused to dismiss the Incident Report. [Id.] Instead, DHO Mehler postponed the hearing, stating that he needed to talk to Captain Maruka about the charge. [Id.] In early July 2012, Lieutenant Baker served Perry with revised Incident Report No. 2239424 which asserted that FTC-Oklahoma SIS staff, not Lieutenant Daniels, had discovered contraband in a different location. [Id., ¶ 140]
In August 2012, Perry was found guilty of the offense charged in the revised Incident Report No. 2239424. On the same day, Captain Maruka released him from the SHU, where he had been confined for nine months. [Id., ¶ 141] Perry appears to allege that, as a result of Incident Report No. 2239424, "he was sanctioned...
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