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Dixon v. Zenk

August 20, 2007

EMILE MARK DIXON, PLAINTIFF,
v.
MICHAEL ZENK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Emile Mark Dixon, a federal prisoner, brings this pro se action for money damages against five current and former employees of the Federal Bureau of Prisons ("BOP"), in their individual and official capacities, pursuant to the principles of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In substance, Dixon claims the defendants violated his rights under the Due Process Clause of the Fifth Amendment by (a) wrongfully detaining him in the Special Housing Unit ("SHU") of the Metropolitan Detention Center in Brooklyn, New York ("MDC") and (b) not allowing him to be heard to protest that placement. The defendants move pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss the complaint.*fn1 For the reasons set forth below, I grant the motions in part and deny them in part. Specifically, the complaint is dismissed except insofar as it states a timely procedural due process claim against Michael Zenk in his individual capacity.

BACKGROUND

Dixon alleges that each of the defendants "violated [his] liberty interests and procedural due process rights[] [b]y subjecting [him] to atypical conditions, and [depriving him of] the right to be heard." Compl. 3, 4, 5. In particular, Dixon claims that on April 9, 2002, while he was incarcerated at the MDC awaiting trial, he was transferred from the general population to administrative detention in the SHU. Id. at 6. According to the complaint, Dixon received a justification for the transfer a week later, in the form of a detention order stating that he was a security risk. Id.

The narrative portion of the complaint implies that Dixon did not immediately prosecute administrative challenges to the detention, beyond asking an officer why he had been transferred to the SHU. Id. The officer promised to look into the matter but never returned. Id.

As "the weeks" of his detention "became months," however, Dixon says he "began to press the issue" of his transfer and its attendant restrictions "more rigorously, through the remedies available to [him]." Id. Dixon explains that he "thought that the matter would [be] resolved shortly." Id.

Certain documents appended to Dixon's complaint, however, reflect that he began to seek administrative relief less than two months after his transfer. In one document, entitled "Inmate Request for Informal Resolution" and dated May 28, 2002, Dixon requested a weekly review of his "case" and remarked that he was "being denied adequate access to the Law Library [and his] lawyer[,] among many other things." Id. at 14. In another, entitled "Request for Administrative Remedy" and dated May 29, 2002, Dixon stated that his detention was based solely on the fact that he risked capital punishment for the crime with which he was charged; asserted that he was not a risk to security; noted that the SHU denied him the "rights and privileges [he] should and would have access to [were he] in general population;" and requested transfer out of the SHU. Id. at 15-16.

Dixon did not obtain relief from the BOP. His "Request for Administrative Remedy" was denied by Warden Michael Zenk, see id. at 17, and his appeal to the regional director of the BOP was likewise denied. See id. at 18-20. In addition, Dixon claims, each of the defendants repeatedly denied other requests by him to return to the general population and for relief from the restrictions on his liberty. See id. at 8 (claiming Zenk "constantly denied" those requests "both orally and in writing, again and again, whenever the warden made his weekly visits and I inquired about my situation."); id. (claiming former Associate Warden Linda Thomas also denied Dixon's requests); id. at 9 (claiming former Captain Salvatore LoPresti also denied Dixon's requests); id. (claiming former Lieutenant Kelly Tassio also denied Dixon's requests); id. (claiming former Unit Manager Carlos Duff "constantly" denied Dixon's requests). Dixon alleges that if the defendants permitted him to plead his case at all, they gave only cursory responses to his inquires. See id. at 8 (claiming Zenk would reply only that Dixon's "status remain[ed] the same"); id. (claimingThomas "merely state[d] that he [sic] would house [Dixon] wh[ere]ever he [sic] deems appropriate."); id. at 9 (claiming LoPresti "directly refused to give [Dixon] any form of interviews, so that he might rate [Dixon's] progress"); id. (claiming Duff "refused to tell [him] how [his] case was being reviewed or gave ambiguous answers" and told Dixon he "was not allowed to take part or make any statements in [the review] proceedings"); see also id. (claiming Tassio "failed to follow proper policy and procedure").

Dixon claims that as he prosecuted his administrative remedies, he explained to the authorities that the length and severity of his detention was affecting his psychological and physical health. See id. at 6-7. The complaint itemizes various restrictions special to Dixon's administrative detention: he "had no access to the law library;" he had "limited" telephone and in-person communication with his lawyers and family (he was required to make appointments with his children two to three weeks in advance); his wrists were cuffed whenever he left his cell; he was "locked down" for 23 hours of the day in a constantly lit cell; and he had almost "no formal or informal interviews" and no psychiatric evaluations. Id. at 7.

Ultimately, Dixon claims, he "exhaust[ed] all avenues" of relief. Id. at 8. He then "approached a captain" to further inquire about his situation. Id. The captain promised to speak with the prosecutor assigned to Dixon's case, but Dixon heard no word back, and "after about 18 months" in the SHU, Dixon was transferred back to the general population of the MDC.

Id.

The original complaint in this action was signed by Dixon on May 12, 2005; received by the Pro Se Office of this Court on May 20, 2005; and filed with the Clerk of this Court on June 29, 2005. The original pleading specifically named only Zenk as a defendant; it identified the other four defendants only by their positions and the filler name "John Doe." On October 23, 2006, United States Magistrate Judge Lois Bloom directed the United States Attorney to identify the John Doe defendants and provide their addresses for service. Upon counsel's ...


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