Perry v. Agric. Dept
| Decision Date | 29 February 2016 |
| 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 |
The matter is pending for consideration of the motion to dismiss or, alternatively, for summary judgment filed by Defendants Leroy Chaney, Lieutenant at United States Penitentiary ("USP")-McCreary, Donald Weiss, Lieutenant at USP-McCreary, John Fowler, Lieutenant at the USP-McCreary, David Altizer, Lieutenant at USP-McCreary, and Stephanie Sumner, Nurse at USP-McCreary. [Record No. 53] For the reasons discussed herein, the Court will grant the defendants' motion.
Perry filed this action in July 2014, asserting various claims against fifty-one defendants. [Record No. 1] Perry asserted constitutional claims under 28 U.S.C. § 1331, pursuant to the doctrine announced in Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), and tort claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§1346(b), 2671-80. Perry filed other motions seeking injunctive relief to prohibit the defendants from retaliating against him. [Record Nos. 19 and 20] Among his other claims, Perry alleged that: (i) Defendants Chaney and Weiss retaliated against him in response to an institutional complaint against another USP-McCreary official; (ii) on June 27, 2014, Defendant Altizer assaulted him and applied excessive force; and (iii) Defendants Fowler and Sumner denied him medical treatment and were deliberately indifferent to his serious medical needs.
Perry asserts that he filed a complaint on May 1, 2014, with the Supervisory Investigative Agent ("SIA") at USP-McCreary about disputes with Officer A. Rose during the previous month. [Record No. 1, p. 20 ¶¶ 167-171] Perry alleges that Chaney summoned him to his office to address the complaint, and told Perry that if he did not drop the complaint against Rose, he would move Perry to a different housing unit. [Id. ¶¶ 172-173] Perry claims that, when he refused to drop the complaint, he was placed in a holding cell until later that evening when Lt. Donald Weiss released him and moved him to a different housing unit. [Id. ¶ 174]. Perry questioned Weiss about why he was being moved to a housing unit with inmates who were known to be hostile toward inmates from Perry's state. [Id. ¶ 175]. Perry alleges that Weiss responded, "I will let the inmates handle our problem for us." [Id. ¶ 176].
Perry claims that, on June 27, 2014, while Altizer was transporting him from the Special Housing Unit ("SHU") to an area near medical and the R&D [Receiving and Discharge] department, Altizer applied excessive force andphysically assaulted him, placed him in restraints, and took him to the SHU. [Id. ¶¶ 48, 68] Perry alleges that, on June 28, 2014, Fowler and Nurse Sumner conducted the "first shift restraints checks" and during those checks, he complained of loss of feeling in his right hand. [Id., ¶¶ 72-74] Sometime after 9:30 a.m., Perry was escorted by Fowler to R&D where he underwent an x-ray body scanner. [Id. ¶¶ 78-79]. Perry alleges that he again complained to Fowler that the restraints were hurting his wrists and causing him to lose feeling in his right hand. [Id. ¶ 80] Perry contends that later that same day (June 28, 2014), during afternoon pill distribution in the SHU, he showed his wrists to Sumner and complained of a loss of feeling in his right wrist. However, Nurse Sumner refused to either treat his writs or provide a medical request form. [Id., ¶ 81]
On April 16, 2015, the Court screened Perry's federal Complaint, dismissing all claims except those asserted against Chaney, Perry, Altizer, Fowler, and Sumner. Perry's request for a preliminary injunction also was denied. [Record No. 23] On May 29, 2015, the Sixth Circuit dismissed as premature Perry's interlocutory appeal of the dismissal of most of his Bivens claims, but allowed his appeal of the denial of the preliminary injunction to proceed. [Record No. 34] Thereafter, on June 13, 2015, Perry filed an Amended Complaint in which he broadly reiterated his prior allegations that the USP-McCreary staff conspired against him, punished him, and discriminated against him for filing a complaint alleging staff misconduct. [Record No. 37] On October 22, 2015, the Sixth Circuit dismissed Perry's appeal of the denial of his request for a preliminary injunction. [Record No. 62] In dismissing Perry's appeal, the Sixth Circuit concluded that "Perry has failed to establish a substantial likelihood that he would prevail on the merits of his remaining claims." [Id., p. 2]
In July 2015, the five remaining defendants moved the Court to either dismiss the claims asserted against them or enter summary judgment in their favor. [Record No. 53] Each submitted sworn Declarations refuting Perry's claims against them. Further, Joshua Billings, Senior Attorney at the Consolidated Legal Center ("CLC") at the Federal Medical Center in Lexington, Kentucky, submitted a Sworn Declaration detailing Perry's federal sentences as well as his institutional history.1 [Record No. 53-2] The defendants argue that Perry did not properly exhaust his claims under the BOP's administrative remedy process or, alternatively, that they are entitled to summary judgment because no genuine issue of material facts exists regarding Perry's First and Eighth Amendment claims. Finally, the defendants argue that Perry's state tort "assault" claim against Altizer should be dismissed because Perry failed to file an FTCA administrative claim.
On September 28, 2015, Perry filed a "Motion for Docket Entries," claiming that when he was transferred from USP-McCreary to USP-Lewisburg, allof his property and documents relating to this case were seized and/or the subjedt of tampering. Thus, he contends that he was unable to properly respond to the defendants' motion. [Record No. 58] Perry attached his own affidavit in which he claimed that, while trying to respond to the defendant's motion to dismiss/summary judgment, he was denied access to the Inmate Electronic Law Library ("ELL") on specific occasions and that he was also denied access to his personal property and legal materials. [Record No. 58-1]
The defendants responded that Perry's right of access to the courts was not hindered. [Record No. 61] Billings indicates that, after Perry was transferred from USP-McCreary to USP-Lewisburg, he had ongoing access to the ELL and that he used it on multiple dates, often for substantial periods. [Record No. 61, p. 2] Billings also indicates that, on September 21, 2015, Perry received six boxes of personal property including three boxes of legal materials. Perry admits that he received his personal property and legal papers on September 21, 2015. [Record No. 58-1, p.2, ¶ 10]
The defendants acknowledge that Perry may have experienced some delay in receiving his legal material and that on a few specific dates he may not have had access to the ELL. However, they argue that Perry was not prejudiced by the delay. The defendants note that the Court promptly granted Perry's request for additional time and that Perry subsequently received his personal property, used the law library, and filed a response to their motion. On February 9, 2016, the Court denied Perry's motion seeking docket entries. [Record No. 66]
Chaney states that, on April 28, 2014, Perry submitted an "Informal Resolution Form" in which he complained about an incident involving Officer Rose which occurred two days earlier. [Chaney Decl., Record No. 53-3, ¶ 3; see also Record No. 53-2, pp. 75-76, "Informal Resolution Form"] In his informal remedy request, Perry alleged that Officer Rose had threatened to physically and sexually assault him, and had stolen his personal property. On May 1, 2014, Chaney met with Perry as part of the investigation regarding his allegations. [Id.] Chaney states that during this meeting, he did not instruct or ask Perry to "recant" his complaint against Officer Rose, but told Perry that: (i) he needed to submit a sworn affidavit to verify the allegations of his complaint; (ii) he needed to be fully truthful in his affidavit; and (iii) if he intended to change any details about his allegations, he should do so before he signed the affidavit and submitted his complaint. [Id.]
According to Chaney, Perry did not wish to change his story but, instead, intended to proceed with his sworn affidavit. Chaney took Perry's statement and prepared an affidavit which Perry reviewed and signed. [Id., ¶ 4] Lt. Chaney determined that, to decrease the possibility of further conflict, it was best for Perry, Officer Rose, and the institution, if Perry was moved to another housing unit where Officer Rose did not work. [Id.] Chaney explains that Perry's new housing unit was still located general population, and not in the more restrictiveSpecial Housing Unit ("SHU"). By remaining in the general population, Perry could continue to participate in the same prison programs and work with the same Unit Team. [Id.]
Chaney states that his decision to transfer Perry to another housing unit was not in retaliation for Perry's having filed a complaint against Officer Rose. [Id., ¶ 5] Further, Chaney indicates that Perry's new housing assignment (Unit 1B) did not subject Perry to any increased risk of danger because all housing units at USP-McCreary have inmates from variety of backgrounds, race and geographical locations. [Id., ¶ 5; see also, Weiss Decl., Record No. 53-4, ¶ 4] Chaney further explains that all housing decisions are made to prevent one group from becoming too strong within a unit, thus ensuring the safety of all inmates. [Id.]
Defendant Weiss contends that he did not know that Perry had filed a complaint against Officer Rose because BOP policy prevented him from learning about any complaint filed by a prisoner against a prison staff member. [Weiss Decl.,...
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