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Wise v. Wilson

United States District Court, E.D. Virginia, Alexandria Division

January 6, 2017

Darryl Garte Wise, Plaintiff,
v.
Eric D. Wilson, et al., Defendants.

          MEMORANDUM OPINION

          Leonie M. Brinkema, United States District Judge.

         Darryl 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.

         I. Background

         In his complaint, plaintiff asserts the following allegations which, for purposes of the Motion to Dismiss, will be taken as true.

         A. Claim One

         On 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 plaintiff. Id.

         Plaintiff 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.

         B. Claim Two

         During 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.

         C. Claim Three

         Plaintiffs 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.

         Plaintiff 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.

         Plaintiff 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.

         II. ...


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