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Powers v. Mosley

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

April 2, 2019

Grady William Powers, Plaintiff,
v.
Warden Bonita Mosley, et. al., Defendants.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER, DISTRICT JUDGE

         Plaintiff, a federal prisoner proceeding pro se and in forma pauperis, brings this civil rights action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his First Amendment rights and property loss. (Dkt. No. 12.) This matter is before the Court upon Defendants' Motion to Dismiss. (Dkt. No. 41.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth herein, the undersigned recommends granting Defendants' motion.

         BACKGROUND

         Plaintiff's claims arise from his incarceration at the Federal Correctional Institution in Edgefield, South Carolina (“FCI Edgefield”). Specifically, Plaintiff alleges that on August 29, 2017, Defendants Unit Manager Shawn Laugh (“Laugh”), Counselor Gary Brunson (“Brunson”), Lieutenant Fred Collister (“Collister”), Lieutenant Broadwater (“Broadwater”), and Captain Mark Castro (“Castro”) assigned him to share a cell with a homosexual inmate despite Plaintiff's religious objections. (Dkt. No. 12 at 8-10.) According to Plaintiff, he was told by Laugh that “due to a higher authority at FCI Edgefield, he had no choice but to assign [the homosexual inmate] to [Plaintiff's] cell.” (Id. at 8.) When Plaintiff refused to accept the cell assignment, Defendant Christian Bray (“Bray”) advised him to report to the Lieutenant's Office. (Id. at 9.) Plaintiff alleges that Collister, Castro, and Broadwater were in the Lieutenant's Office when Plaintiff went to express his concerns. Plaintiff alleges that after he expressed his concerns, Castro “smiled and stated, ‘You mean to tell me, if I wanted to be your cellie that you would not cell with me.'” (Id. at 10.) Plaintiff responded, “I would not cell with you if you violated my religious belief regarding living with or associating with homosexuals.” (Id. at 10-11.) According to Plaintiff, Castro “then ordered [him] into the Special Housing Unit (SHU) for a week to cool down and that no incident report [] would be written.” (Id. at 11.)

         Plaintiff alleges that when he returned to his cell after his week spent in the SHU, he “discovered numerous items of [his] personal property [were] missing.” (Id.) Plaintiff alleges he reported the missing property to Castro and included a list of the missing items. (Id.) According to Plaintiff, “several inmates who reside in Unit B-1 stated to [him] that while the Unit Officer was packing [Plaintiff's] property, that several inmates took his property with the permission of the Unit Officer.” (Id.) Plaintiff alleges he requested a check of the Unit's camera system. According to Plaintiff, Castro responded to his camera request stating that “for some unknown reason, he could not determine what was happening.” (Id. at 11-12.) According to Plaintiff, Castro's statement is “factually untrue” because “one camera is pointed directly at [Plaintiff's] cell.” (Id. at 12.) Plaintiff alleges that when he asked Broadwater about returning or replacing the missing property, Broadwater stated, “That was probably not going to happen. That's what happens when you go to the SHU, ” and he told Plaintiff to “file a tort claim.” (Id.)

         Plaintiff has attached to his Amended Complaint a form he completed for “Small Claims Property Damage or Loss” under 31 U.S.C. § 3723, dated December 11, 2017. (Dkt. No. 12-1 at 1.) In this form, Plaintiff states in part that when he was “placed in Segregation, my property was packed up by Officer Bray who was filling in, and my property was either misplaced or stolen by inmates who somehow found access to it.” (Id.) He further states, “[b]ased on my Commissary purchases the lost property amount to $300.00”-Plaintiff attached to the form a list of the allegedly missing property. (Id. at 1-3.)

         Plaintiff has also attached the response he received from the Federal Bureau of Prisons (“BOP”). (Dkt. No. 12-1 at 4-5.) In this letter, the BOP states that it conducted an investigation into Plaintiff's claim, which revealed that Plaintiff was “given the opportunity to review [his] property” upon returning from the SHU. According to the BOP,

[Plaintiff] signed the Inmate Personal Property Record (BP-383) indicating this was a complete and accurate accounting of your property. Section 10 of the BP-383 states, “The inmate by signing below certifies the accuracy of the inventory, except as noted on the form, relinquishing of all claim to articles listed as donated, receipt of all allowable items, and receipt of a copy of the inventory. . . . If the inmate states that there is missing or damaged property, this information should be noted under Comments.” There was no notation on the form that you were missing anything.
A review of our BP-383s also revealed that you were in possession of a combination lock, and that your locker had been unsecured when the officer went to retrieve your property from your locker. Program Statement 5580.07, page 3, Inmate Personal Property, states in part, “Staff shall set aside space within each housing area for use by an inmate. The designated area shall include a locker or other securable area in which the inmate is to store authorized personal property. The inmate shall be allowed to purchase an approved locking device for personal property storage . . . By providing secured space, and adhering to guidelines on retention of property, the individual inmate has responsibility for securing personal property.” Had all your property been secured in your locker, any missing items would have been included in the inventory. The BOP and its employees are not responsible for the loss or theft of property not properly secured by the owner.

(Id.) The BOP explained that it was denying Plaintiff's claim and advised Plaintiff

You cannot file suit in an appropriate U.S. District Court, as there is no judicial review for claims decided pursuant to 31 U.S.C. § 3723. You may request, in writing, that the Bureau reconsider your claim . . . within three (3) months of the date of this letter, with additional evidence of the damage or loss caused by the negligent or wrongful act or omission of any BOP employee to support your request for reconsideration.

(Id. at 5.) There is no evidence in the record that Plaintiff ever filed a request for reconsideration to the BOP.

         The Amended Complaint indicates Plaintiff is suing Defendants pursuant to Bivens for violation of his “religious beliefs” under the First Amendment. (Id. at 6.) Under “injuries, ” Plaintiff writes, “No physical injuries, but mental, emotional and spiritual damage.” (Id. at 14.) Plaintiff seeks $25, 000 for missing property, $50, 000 for pain, suffering, and mental anguish, and no retaliation or transfer due to this action. (Id.) He states that he is suing Defendant Castro in his individual capacity, and he is suing Defendants Mosley, Laugh, and Attorney General Jeff Sessions in their official capacities. (Id. at 2-3.) Plaintiff does not note whether he is suing the remaining Defendants in their individual or official capacities.

         STANDARDS

         A. Liberal Construction of Pro Se Complaint

         Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         B. Rule 12(b)(1) Dismissal Standard

         Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a claim should be dismissed if it lacks subject matter jurisdiction. When considering a motion to dismiss for lack of subject matter jurisdiction, “the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). “The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Friends of Dereef Park v. Nat'l Park Serv., No. 2:13-CV-03453-DCN, 2015 WL 12807782, at *4 (D.S.C. Apr. 13, 2015) (internal citations omitted).

         C. Rule 12(b)(6) Dismissal Standard

         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, ...


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