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Rios v. Slater

United States District Court, D. South Carolina, Florence Division

March 2, 2017

Joes E. Rios, Plaintiff,
v.
E. Slater (F.N.U.), D.H.O. Officer, F.C.I. Williamsburg; W. McLean (F.N.U.), S.I.S. Technician, F.C.I. Williamsburg; D. Whitehurst (F.N.U.), A.H.S.A., F.C.I. Williamsburg, Defendents.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge.

         This is a civil action filed pro se by Plaintiff Jose E. Rios, a federal inmate currently housed at the Federal Correctional Institution Marianna in Marianna, Florida. On April 25, 2016, Plaintiff filed this complaint alleging a violation of his constitutional rights pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).[1] On October 24, 2016, Defendants filed a Motion to Dismiss or, in the alternative, a Motion for Summary Judgment. Because Plaintiff is proceeding pro se, he was advised on or about October 25, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), of the procedure for a Motion to Dismiss/Summary Judgment and the possible consequences if he failed to respond adequately. (Doc. #29). Plaintiff responded to Defendants' motion on November 28, 2016.[2] On December 8, 2016, Defendants filed a reply. (Doc. #35).

         BACKGROUND

         Plaintiff was sentenced on August 3, 2006, by the United States District Court in the Southern District of Florida to 240 months of incarceration, followed by a three year term of Supervision for Conspiracy to Commit Alien Smuggling, Alien Smuggling, Possession with Intent to Distribute Marijuana in the form of Hashish Oil, Attempting to Import Marijuana in the Form of Hashish Oil, and Possession with Intent to Distribute Marijuana in the form of Hashish Oil on Board a Vessel.

         Plaintiff was housed at the Federal Correctional Institution (FCI) Williamsburg, from July 12, 2013, to March 14, 2014. On April 25, 2016, Plaintiff filed this action alleging that his due process rights were violated during his disciplinary hearing (DHO) and rehearing while at FCI Williamsburg, when he was found to have violated Inmate Discipline Code 111A, Attempted Introduction of Narcotics. Specifically, Plaintiff alleges that Defendant Slater violated his rights by imposing disciplinary sanctions against him without having any BOP staff perform a chemical analysis for an ingredient found in an envelope mailed to him to verify that it was Suboxone before charging and convicting him of narcotics. Further, Plaintiff alleges that Defendant McLean investigated an envelope addressed to Plaintiff in the institution mail containing a smaller envelope of Suboxone and relied on a visual identification from Defendant Whitehurst verifying the substance instead of having chemical analysis performed. Plaintiff asserts that Defendant McClean filed Incident Report #2516102 against him knowing that the substance had not been tested. As a result, Plaintiff was sanctioned including the loss of good time credit and visitation rights. (Doc. #1-1). Plaintiff alleges these Defendants were equally responsible in violating his due process rights and seeks actual and punitive damages in the amount of $7000.00.

         Plaintiff filed Remedy #762630-R1 on December 24, 2013, and Remedy #762630-R2 on January 21, 2014, appealing the DHO sanctions through the Administrative Remedy Program. On January 22, 2014, a rehearing on Code 111A violation was ordered. On February 5, 2014, a DHO rehearing was held on Incident Report #2516102 on the charge of a violation of Code 111A. Again, Plaintiff was convicted for the prohibited act of a Code 111A violation and sanctions were imposed. Plaintiff received the following sanctions imposed by Defendant Slator: forty-five days Disciplinary Segregation (DS); forty-one days disallowance of Good Conduct Time (GCT); loss of privileges of visiting for one year, to be restored on December 4, 2014; and loss of privileges for visitors of one year to start on December 4, 2014, and end on December 5, 2015, wherein only immediate family would be allowed to visit. Defendant Slater signed the DHO report on February 5, 2014, and Plaintiff received a copy of the DHO report on February 11, 2014.

         Defendants stipulate that Plaintiff has exhausted his administrative remedies.[3] Defendants seek dismissal of Plaintiff's claims against them pursuant to Fed.R.Civ.P. 12(b)(6).

         MOTION TO DISMISS

         A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

         Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:

[T]he pleading standard Rule 8 announces does not require “detailed factual allegations, ” but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d ...


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