The opinion of the court was delivered by: John G. Koeltl, District Judge
The plaintiff, Michael McClenton, brought this action against twelve current and former employees of the Bureau of Prisons ("BOP"), in their personal and official capacities, seeking compensatory and punitive damages. He also seeks a preliminary injunction.
In the complaint, the plaintiff has named Frederick Menifee ("Menifee"), the Warden of FCI Otisville; Allison Henry ("Henry"), the plaintiff's Case Manager; Ken Walicki ("Walicki"), a Unit Manager; D. Wynkoop ("Wynkoop"), a Unit Secretary; Soto Andrikos ("Andrikos"), the plaintiff's Case Manager; L. Knoblauch ("Knoblauch"), a Paralegal Assistant; Joseph Wilner ("Wilner"), the Associate Warden of FCI Otisville; Disciplinary Hearing Officer Banks ("Banks"); Correction Officer Neely ("Neely"); Correction Officer Marchase ("Marchase");*fn1 M.E. Ray ("Ray"), the Northeast Regional Director; and Harrell Watts ("Watts"), the Administrator for National Inmate Appeals.
The plaintiff asserts claims (1) under the First Amendment to the United States Constitution, alleging that he was subject to retaliation for the exercise of his right to free speech, (2) under the Eighth Amendment to the United States Constitution, alleging that the defendants' conduct amounted to cruel and unusual punishment, (3) for a violation of equal protection, alleging that the defendants discriminated against him on account of race, (4) under the Federal Tort Claims Act ("FTCA") 28 U.S.C. §§ 1346(b), 2671-2680, alleging that the defendants' acts and omissions were tortious under federal law, (5) under 42 U.S.C. § 1981, alleging that the defendants engaged in acts of discrimination, harassment, and intimidation that violated his civil rights under color of federal law, (6) for equitable relief pursuant to Federal Rule of Civil Procedure 65 seeking to enjoin defendant Andrikos from engaging in actions, including but not limited to, Eighth Amendment violations, abuse of authority, and unlawful intimidation, and (7) unspecified relief under the Fifth, Sixth, and Ninth Amendments to the United States Constitution.
The defendants have moved to dismiss, or, in the alternative, for summary judgment. No discovery has occurred in this case. The defendants argue, among other things, that the Court lacks subject matter jurisdiction over constitutional claims brought against BOP employees in their official capacities, that many of the events cited by the plaintiff in support of his claims are barred by the statute of limitations, that the plaintiff failed to exhaust his administrative remedies with respect to many of his constitutional and statutory claims, that many of the defendants lack the personal involvement required to support a constitutional claim, that the plaintiff failed to allege a constitutional violation, that the defendants are entitled to qualified immunity, and that the plaintiff has failed to establish the necessary requirements for a preliminary injunction.
The plaintiff opposes the defendants' motions in a paper that he describes as a motion for summary judgment. Because both parties have provided the Court with affidavits and exhibits in support of their motions that go beyond the information provided in the pleadings, the motions are considered to be motions for summary judgment.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is appropriate if it appears that the non-moving party cannot prove an element that is essential to the non-moving party's case and on which it will bear the burden of proof at trial. See Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795, 805-06 (1999); Celotex, 477 U.S. at 322; Powell v. Nat. Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998); Singh v. New York City Off-Track Betting Corp., No. 03 Civ. 5238, 2005 WL 1354038, at *1 (S.D.N.Y. June 8, 2005).
Where, as here, a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). In particular, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See McPherson, 174 F.3d at 281; Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). Express notice of a failure to respond was provided to the plaintiff, and the plaintiff did file a timely response to the defendants' motion for summary judgment.
The facts in this case are undisputed for the purpose of this motion unless otherwise noted. On December 18, 1995, the plaintiff was sentenced in the United States District Court for the Eastern District of Pennsylvania to 180 months imprisonment and five years of supervised release for bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2; conspiracy to commit bank robbery in violation of 18 U.S.C. § 371; and armed bank robbery in violation of 18 U.S.C. § 2113(d). (Defendants' Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 ("Defendants' Stmt."), ¶ 1; Plaintiff's Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 ("Plaintiff's Stmt."), ¶ 5; Complaint, ¶ 18.)
As part of the sentence, the district court ordered the plaintiff to pay $170,750 in restitution and $150 in special assessments. The restitution was to be paid during the period of the plaintiff's imprisonment and supervised release in accordance with a schedule of payments approved by the United States Probation Office and based on the plaintiff's ability to pay. (Defendants' Stmt., ¶ 2; Plaintiff's Stmt., ¶ 6; complaint ¶ 19.) The plaintiff arrived at FCI Otisville on October 25, 2000 from another facility. (Defendants' Stmt., ¶ 6; Plaintiff's Stmt., ¶ 10.)
Based on his financial status and outstanding obligations, the plaintiff's "Unit Team" (including Andrikos and Walicki) determined that it would be appropriate for him to pay $35 per month toward his restitution through the Inmate Federal Responsibility Program ("IFRP"). (Defendants' Stmt., ¶ 7); Complaint, ¶ 21.) The plaintiff disputes that this payment schedule was "appropriate." (Plaintiff's Stmt., ¶ 11.) The plaintiff advised Andrikos that in a previous correctional facility he had only been asked to contribute $25 per quarter, and he requested continuation of this arrangement.*fn2 (Complaint, ¶ 23.) When Andrikos denied this request, the plaintiff refused to participate in IFRP at a rate of $35 per month and was consequently placed on "refusal status."*fn3 (Defendants' Stmt., ¶ 8; Plaintiff's Stmt., ¶ 12 Complaint, ¶¶ 22, 25.)
After the plaintiff was placed on refusal status, the plaintiff made numerous informal and formal requests seeking an administrative remedy.*fn4 On October 26, 2001, the plaintiff filed BP-9 # 252380-F1, in which he challenged his Unit Team's decision to increase the amount of restitution he would have to pay under IFRP and threatened a civil suit if no solution could be reached. (Defendants' Stmt., ¶ 9; Plaintiff's Stmt., ¶ 13; Complaint, ¶ 27; Ex. E to Decl. of Adam M. Johnson dated Sept. 16, 2005 ("Johnson Decl.").) In his BP-9, the plaintiff also alleged that he had witnessed Walicki and Andrikos participate in "racial intimidation, extortion, and bribery." (Complaint, ¶ 27.) Defendant Knoblauch rejected this request due to the plaintiff's failure to attempt informal resolution*fn5 and instructed the plaintiff to re-file within five days. (Defendants' Stmt., ¶ 10.) The plaintiff subsequently filed two informal BP-8s making the same allegations as his prior BP-9; however, both forms were rejected on the ground that there was no cause for the claims. (Complaint, ¶¶ 30-31.) On November 8, 2001, the plaintiff resubmitted the formal request but it was rejected again due to untimeliness. (Defendants' Stmt., ¶ 11.) The plaintiff asserts that the request was not rejected for untimeliness but for another procedural reason. (Plaintiff's Stmt., ¶ 15.)
On November 7, 2001, the plaintiff filed BP-9 # 253311-F1, in which he alleged that the IFRP plan for $35 per month was unlawful, that the resulting limitation on his privileges because of his IFRP refusal was "extortion," and that defendants Walicki and Andrikos were racially biased and conspired against him. (Defendants' Stmt., ¶ 12; Plaintiff's Stmt., ¶ 16; Ex. G to Johnson Decl.) On November 26, 2001, Menifee denied this request on the ground that a $35 per month payment was appropriate given the plaintiff's financial status and there was no evidence to support his allegations about staff members abusing their authority. (Defendants' Stmt., ¶ 13; Plaintiff's Stmt., ¶ 17.)
On December 7, 2001, the plaintiff filed a BP-10 to appeal Menifee's decision. The BP-10 contained the same allegations, but added the allegation that prison staff members, including defendants Menifee, Knoblauch, and Wynkoop, were hindering the administrative remedy process by failing to return some of his paperwork to him. (Defendants' Stmt., ¶ 14; Plaintiff's Stmt., ¶ 18; Ex. H to Johnson Decl.) Regional Director Ray denied the BP-10, finding that the decision to increase IFRP payments was fair and appropriate, and that the plaintiff provided no evidence of hindrance in the administrative remedy process. (Defendants' Stmt., ¶ 15; Ex. H to Johnson Decl.) The plaintiff contends that Ray failed to conduct an investigation. (Plaintiff's Stmt. ¶ 19.)
On February 5, 2002, the plaintiff filed a BP-11 based on the same allegations in the previous appeal. (Defendants' Stmt., ¶ 16; Plaintiff's Stmt., ¶ 20; Ex. I to Johnson Decl.) Defendant Watts, the Administrator of National Inmate Appeals, denied the appeal on December 3, 2002, stating that the plaintiff's failure to pay $25 per quarter justified the sanctions against him. (Defendants' Stmt., ¶ 17; Plaintiff's Stmt., ¶ 21; Ex. I to Johnson Decl.) An amended response was issued on January 14, 2003, correcting the amount that the plaintiff refused to pay to $35 per month toward restitution. (Ex. I to Johnson Decl.)
In February 2003, the plaintiff filed a motion before the sentencing court seeking to vacate the court's restitution order. (Defendants' Stmt., ¶ 19; Plaintiff's Stmt., ¶ 23.) On April 24, 2003, the district court issued an order directing the plaintiff to pay $20 per year toward his restitution order while incarcerated or unemployed. (Defendants' Stmt., ¶ 20; Plaintiff's Stmt., ¶ 24.) The plaintiff alleges that he suffered a stroke in May 2003. The plaintiff alleges that the stroke was precipitated by the stress from the defendants' actions and his constant fear of reprisal. (Complaint, ¶ 60.) The plaintiff further alleges that the stroke caused permanent damage to his voice and left him permanently disabled for more than six weeks. (Id.) The plaintiff was taken off refusal status on May 5, 2003. (Defendants' Stmt., ¶ 21; Plaintiff's Stmt., ¶ 25.)
On or about July 15, 2003, the plaintiff alleges that he was removed from the general population and placed in the Special Housing Unit ("SHU"). (Complaint, ¶ 62.) He alleges that an incident report asserts that he was placed in SHU for assisting another inmate who had participated in a fight. (Id.) The plaintiff maintains that he did not engage in any conduct amounting to this charge. (Complaint, ¶ 63.) While being transferred to and held in SHU, the plaintiff alleges that he was handcuffed and locked in a small room, that he was a victim of theft, food tampering, harassment, and unjustified limitation of his recreation period. (Complaint, ¶¶ 64-66.) The plaintiff alleges that Banks and Neely laughed at him. (Complaint ¶ 65.) The plaintiff further alleges that while Menifee was making his weekly rounds of SHU, the plaintiff demanded to know why he was still awaiting disposition of the incident report. According to the plaintiff, Menifee sarcastically rebuffed his question. (Complaint, ¶ 67.) The next morning, the plaintiff was released from SHU with no disciplinary finding made against him and he was given no opportunity for a disciplinary hearing. (Complaint, ¶ 68.)
On or about November 3, 2004, the plaintiff filed BP-9 # 358842-F1, alleging that Marchase harassed and retaliated against him for filing administrative complaints.*fn6
(Defendants' Stmt., ¶ 22; Plaintiff's Stmt., ¶ 26; Ex. K to Johnson Decl.) The request was denied on the grounds that the plaintiff's facts were either implausible or unsubstantiated. (Defendants' Stmt., ¶ 23; Plaintiff's Stmt., ¶ 27.) On or about November 16, 2004, the plaintiff filed another BP-8 describing Marchase's alleged harassment. The BP-8 was answered by Walicki who found no basis for the complaint. (Complaint, ¶ 76.)
On December 22, 2004, the plaintiff filed a BP-10 which reiterated the issues raised in the previous complaint and added an allegation that Knoblauch and Walicki had conspired to lose or delay processing of his previous BP-9. (Defendants' Stmt., ¶ 24; Plaintiff's Stmt., ¶ 28; Ex. L to Johnson Decl.) The Regional Office indicated that the allegations concerning the "stamp incident" were being investigated; however, the Regional Office declined to reach the other issues raised in the BP-10 because of their untimeliness and the plaintiff's failure to raise them in his prior BP-9. (Defendants' Stmt., ¶ 25; Plaintiff's Stmt., ¶ 29; Ex. L to Johnson Decl.) On February 10, 2005, the plaintiff filed a BP-11 raising the same issues, and the Central Office responded that the allegations had been referred for investigation. (Ex. M to Johnson Decl.)
On December 6, 2004 the plaintiff filed BP-9 # 361010-F1 alleging that Marchase had engaged in racially discriminatory and retaliatory actions when he searched the plaintiff and "no one else" and had forced the plaintiff to return to his cell. (Defendants' Stmt., ¶ 26; Plaintiff's Stmt., ¶ 30; Ex. N to Johnson Decl.) Warden Menifee denied this request on the ground that the plaintiff had failed to demonstrate that the challenged actions resulted from retaliation or racial bias. (Ex. N to Johnson Decl.) On January 6, 2005, the plaintiff filed a BP-10 appeal to the Regional Office and the appeal was denied. (Defendants' Stmt., ¶ 28; Plaintiff's Stmt., ¶ 32; Ex. O to Johnson Decl.) On February 22, 2005 the plaintiff filed a BP-11 appeal to the central office on the same ground and the appeal was similarly denied. (Defendants' Stmt., ¶ 29; Plaintiff's Stmt., ¶ 33; Ex. P to Johnson Decl.)
It is undisputed that the plaintiff has not filed any administrative tort claims with the BOP. (Defendants' Stmt., ¶ 30; Plaintiff's Stmt., ¶ 34.)
On July 11, 2005 the plaintiff requested by letter that this Court "place an injunction and restraining order against defendant Andrikos." The plaintiff based his request on events arising out of an institutional lockdown at FCI Otisville on July 6, 2005. (Plaintiff's Letter to Assistant United States Attorney Kristin L. Vassallo dated July 11, 2006 ("Vassallo Letter"), at 1.) On the morning of July 6, 2005 the plaintiff alleges that he was removed from his cell to be interviewed. The plaintiff alleges that he noticed Andrikos standing outside his cell when he was removed. The plaintiff further alleges that when he returned to his cell, Andrikos was searching the cell without supervision. The plaintiff subsequently discovered that his "breakfast bag" had been tampered with. (Vassallo Letter, at 2.) The plaintiff concedes that while he is not certain that Andrikos committed this act, he generally objects to Andrikos' unsupervised search of his cell. (Id.)
On August 4, 2005, the plaintiff signed an affidavit in support of a preliminary injunction and temporary restraining order that complained about abuse of authority, improper threats, extortion, and deprivation of rights under the Eighth Amendment. The Court denied the ...