United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema, United States District Judge.
Garte Wise, a former federal inmate proceeding pro se, has
filed a civil rights action, pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics. 403
U.S. 388 (1971). On September 13, 2016, defendants filed a
Motion to Dismiss along with a supporting brief, exhibits,
and the notice required by Roseboro v. Garrison. 528
F.2d 309 (4th Cir. 1975) and Local Rule 7K; however, these
documents were sent to plaintiffs old address. Dkt No. 45. By
an Order dated November 2, 2016, plaintiff was sent a copy of
the documents listed above and granted twenty-one (21) days
to file a response. Dkt. No. 48. Plaintiff filed a Response
to Defendants' Motion to Dismiss on November 23, 2016.
Dkt. No. 50. Defendants filed a Reply Memorandum in Support
of Defendants' Motion to Dismiss. Dkt. No. 51. Although
the certificate of service on defendants' reply
memorandum states the pleading was sent to plaintiffs old
address, it appears as though plaintiff received a copy of
the reply as plaintiff filed a surreply. Dkt. No. 52. This
matter is now ripe for adjudication. For the reasons that
follow, defendants' Motion to Dismiss will be granted and
this matter will be dismissed.
complaint, plaintiff asserts the following allegations which,
for purposes of the Motion to Dismiss, will be taken as true.
October 28, 2013, plaintiff was falsely accused of groping
another inmate, Lee Smith. Continuation to Compl. at 2. As a
result, plaintiff was placed in the special housing unit
(SHU) and was informed that inmate Smith was also placed in
the SHU pending investigation. Id. After plaintiff
was cleared of the allegation and released from the SHU,
plaintiff learned that inmate Smith had not been sent to the
SHU or penalized for filing a false report, despite the fact
that the Inmate Handbook states that inmates will be
penalized for knowingly filing a false report. Id.
Deputy Captain Gradiska told plaintiff that he knew that
inmate Smith lied when he filed the report and instructed
plaintiff to file a complaint. Id. On November 15,
2013, plaintiff "filed a Prison Rape Elimination Act
(PREA) complaint... against inmate Lee Smith...."
Id. When plaintiff followed up with Gradiska about
his complaint, plaintiff was told to not approach Gradiska
again and that Gradiska would let plaintiff know whenever he
found anything out. Id. at 3. Plaintiff then
approached Warden Wilson regarding the complaint, but Warden
Wilson told him that he was unable to discuss the matter with
filed several BP-9 forms between December 3, 2013, and March
18, 2014. Id. at 3-4. Plaintiff appealed the
rejection of his last grievance to the Mid-Atlantic Regional
Office, where his appeal was denied. Id. Plaintiff
then sent a copy of his PREA complaint to the Office of
Inspector General at the Department of Justice which first
rejected the appeal and then concurred with the responses of
Warden Wilson and the Regional Office. Id.
Plaintiffs PREA complaint was never properly investigated or
responded to, causing plaintiff anxiety attacks and trust
issues with the administration. Id. at 5-6.
the week of August 24, 2014, plaintiff reported that his
cellmate, inmate Jack Labrosse, was masturbating in their
cell while plaintiff was present. Id. at 6. Officer
McDowell went to plaintiffs cell and Labrosse was sent to the
lieutenant's office. Id. Fifteen minutes later,
Labrosse returned to the unit without being disciplined.
Id. Plaintiff spoke with Lieutenant Clements about
being exposed to Labrosse's behavior and was told that
"this would not be considered a PREA issue, "
whether it was directed at plaintiff or not. Id. The
next day, plaintiff reported the incident to Counselor Price
who told plaintiff that he would be moved to another cell.
Id. at 7. Plaintiff was not moved after one week, at
which point Unit Manager Vukelich stated she would speak with
Counselor Price to make sure plaintiff was moved.
Id. On September 21, 2014, inmate Labrosse repeated
his behavior. Id. Plaintiff reported the behavior to
Officer McDowell who returned to plaintiffs cell with
plaintiff. Id. Plaintiff entered the cell and told
Labrosse to "get out, " after which Labrosse threw
a chair at plaintiff, which plaintiff caught and threw to the
side. Id. Plaintiff was later taken to the SHU and
served an incident report for fighting. Id.
initial incident report for fighting was delivered on
September 22, 2014. Id. at 9. It was then re-written
on October 11, 2014, and again on October 12, 2014.
Id. The final version of the report was fabricated
and forged, as it is totally different from the previous
reports, and plaintiff was never interviewed regarding the
final re-write. Id. at 10. Lieutenant Ritchey and
Officer McDowell informed plaintiff that they had no
knowledge of the final version of the report, even though
their signatures were on it. Id. Plaintiff informed
Captain Dawson about this, but "she rejected
[plaintiffs] claim." Id. Plaintiff believes
"these actions were taken in retaliation for speaking
out against the Administration's failure to adhere to the
Sexually Abusive Behavior Prevention and Intervention Program
... policy when reporting sexual abusive behavior."
Id. at 8 (emphasis omitted). For example, the
regional office's response to plaintiffs PREA complaint
indicates that the acting administrator knew that plaintiff
was going to be found guilty and disciplined before his
disciplinary hearing occurred. Id. at 11-12.
was confined in the SHU for thirty-three (33) days before
seeing a disciplinary hearing officer (DHO) and then waited
sixty-eight (68) working days before being able to start his
appeal process. Id. at 9. Plaintiff alleges that the
DHO did not listen to his evidence and was only interested in
knowing if plaintiff had thrown a chair, which plaintiff
admitted he did, but argues about "how it was described
in the report." Id. at 11. Specifically,
plaintiff claims that Labrosse "threw a chair towards
[plaintiff] which [he] caught and tossed to the side."
Id. Plaintiff also admitted to the Unit Discipline
Committee that he "threw a chair towards" Labrosse.
Id. at Ex.R.
has named Warden Wilson, Counselor Price, Captain Dawson,
Unit Manager Vukelich, Deputy Captain Gradiska, Lieutenant
Richey, Officer McDowell, and Hearing Officer Bennett as
defendants. Id. at 1. Plaintiff seeks a court order
expunging the conviction of fighting from his disciplinary
record, restoring 27 days of good time credit, changing his
housing status to the appropriate custody level, as well as
reimbursement of court filing fees and monetary damages in
the amount deemed appropriate. Id. at 14.