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Brown v. Ratledge

United States District Court, W.D. Virginia, Roanoke Division

September 29, 2017

JOSEPH A. BROWN, Plaintiff,



         Joseph A. Brown, a federal inmate proceeding pro se, filed a civil action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against Charles Ratledge, the Warden of the United States Penitentiary in Lee County, Virginia (USP Lee).[1] Warden Ratledge filed a motion to dismiss, or in the alternative for summary judgment, Brown responded, and this matter is ripe for disposition.[2] For the reasons stated herein, the court grants Warden Ratledge's motion for summary judgment.

         I. BACKGROUND

         In 2009, Brown was criminally charged with assaulting a correctional officer at the United States Penitentiary in Atwater, California (USP Atwater).[3] After a psychiatric evaluation wherein Brown was found to be legally insane at the time of the offense, the criminal case was dismissed in 2011. (Brown Decl. ¶ 4, Dkt. No. 21, Attach. 2; Dr. AA. Howsepian, Psychiatric Evaluation 2, Dkt. No. 21, Attach. 3.) After the assault at USP Atwater, Brown was designated to the Special Management Unit (SMU) at the United States Penitentiary in Lewisburg, Pennsylvania (USP Lewisburg).

         The Bureau of Prisons (BOP) designates certain inmates who require greater management and oversight to its SMU program in order to ensure the safe, secure, and orderly operation of BOP facilities and the protection of the public. SMU designation is non-punitive. SMU placement is appropriate for any inmate who participates in disruptive gang-related activity; has a leadership role in disruptive gang activity; has a history of serious or disruptive disciplinary infractions; commits any 100-level disciplinary offense after being classified as a member of a disruptive group; participates in, organizes, or facilities any group misconduct that adversely affects the orderly running of an institution; or otherwise participates in or is associated with activity such that greater management of the inmate's interaction with others is necessary to ensure the safety, security, or orderly operation of BOP facilities, or protection of the public. (BOP Program Statement, Special Management Units, Dkt. No. 18, Attach. 3.)

         Brown completed the SMU program at USP Lewisburg on March 1, 2015, and was designated to USP Lee on March 17, 2015. (Wahl Decl. ¶¶ 9-10, Dkt. No. 18, Attach. 1.) On August 20, 2015, while housed at USP Lee, Brown was charged with possessing a dangerous weapon and fighting with his cellmate. This incident was also part of a larger Special Investigative Services investigation into conflict between two inmate groups at USP Lee and resulted in a lockdown of the institution. (Id. ¶¶ 11-12, Compl. 6, Dkt. No. 1; Brown Decl. ¶ 8.) After a disciplinary hearing on August 26, 2015, Brown was convicted of both disciplinary charges. On August 27, 2015, Brown was placed on “transfer for segregation status”[4] and sent to the Federal Correctional Institution in McDowell, West Virginia (FCI McDowell). (Wahl Decl. ¶¶ 13-14.)

         A SMU referral was initiated at USP Lee on or about September 15, 2015. (Id. ¶ 16; Req. for Transfer, Dkt. No. 18, Attach. 6; Mem., Dkt. No. 18, Attach. 7.) Pursuant to the BOP's Program Statement for Special Management Units, if an inmate appears to meet any of the requirements for SMU placement, the inmate's Unit Team makes a SMU referral to the warden of the institution by submitting a request for transfer form and a memorandum discussing the reason for the referral, along with supporting documentation. If the warden approves the referral, the packet is submitted to the regional director. (BOP Program Statement, Special Management Units, Dkt. No. 18, Attach. 3.) In this case, Brown's SMU referral was based on, among other things, his disciplinary convictions for possessing a dangerous weapon and fighting with his cellmate and his poor adjustment to living at USP Lee. (Request For Transfer, Dkt. No. 18, Attach. 6.) The Regional Director for the BOP's Mid-Atlantic Regional Office received Brown's SMU referral on September 15, 2015. (SMU Review Worksheet, Dkt. No. 18, Attach. 8.)

         Brown alleges that on September 23, 2015, “after being notified by staff of the Warden's pending referral for [Brown's] placement in [a Special Management Unit (SMU)], ” Brown filed an informal grievance and attached a copy of a psychiatric evaluation, which he claims “classifies” him “as legally insane from chronic post traumatic stress disorder.” Brown states that he handed the informal grievance directly to the Warden of FCI McDowell. He also alleges that the psychiatric evaluation and informal grievance were sent to Warden Ratledge before he made the referral for Brown's designation to a SMU.[5] Brown states that he “never received a response” to the informal grievance. (Compl. 6-7; Brown Decl. ¶¶ 15-16.)

         Pursuant to the BOP's Program Statement for Special Management Units, after receiving the referral packet from the institution, the regional director determines whether sufficient evidence exists for a hearing. If so, the regional director appoints a hearing administrator to conduct a hearing into whether the inmate meets the criteria for SMU designation. (BOP Program Statement, Special Management Units, Dkt. No. 18, Attach. 3.) In this instance, the Regional Director determined that sufficient evidence existed to warrant a hearing, and the matter was sent to a hearing administrator on September 25, 2015. (SMU Review Worksheet, Dkt. No. 18, Attach. 8.)

         BOP policy provides that the hearing administrator must be impartial and must not have been a witness or victim in any relevant disciplinary action against the inmate. The inmate is provided at least twenty-four hours' notice prior to the hearing, and the notice explains the reason for referral, advises the inmate of his right to appear at the hearing, and informs him that a staff member will be available to assist in preparing documents. The inmate is allowed to be present at the hearing, make a statement, and present documentary evidence and written witness statements, as long as they are not contrary to the security, safety, or orderly operation of the facility. The hearing administrator makes findings regarding whether the criteria for SMU designation are met. The hearing administrator's report is sent to the regional director, who considers the hearing administrator's findings and makes a recommendation as to whether the inmate should be sent to a SMU facility. (BOP Program Statement, Special Management Units, Dkt. No. 18, Attach. 3.) On October 27, 2015, Brown was given notice of a hearing, but he refused to acknowledge that he received the notice. The hearing was held on November 6, 2015, and Brown waived his right to appear, declined staff assistance, and offered no additional information for the hearing. The Hearing Administrator found that Brown met the criteria for SMU designation and explained his findings in a report dated November 10, 2015. The Regional Director reviewed the findings and recommended Brown's designation at a SMU. (Hearing Administrator's Report, Dkt. No. 18, Attach. 10; SMU Review Worksheet.)

         In accordance with the BOP's policy, the regional director's recommendation and hearing administrator's report are sent to the Designation and Sentence Computation Center (DSCC) where staff review pertinent information and, after consulting with the assistant director of correctional programs division in the BOP's central office, indicate if the SMU placement is approved. If approved, the DSCC determines the appropriate SMU facility based upon the inmate's needs. The inmate is given a copy of the report and is advised of the opportunity to appeal the decision directly to the BOP's Office of General Counsel. An appeal does not delay an inmate's transfer to a SMU program. (BOP Program Statement, Special Management Units, Dkt. No. 18, Attach. 3.) In this case, the DSCC and the Correctional Programs Division reviewed the findings and approved Brown's designation to a SMU on December 2, 2015. Brown was provided a copy of the decision on December 11, 2015, but refused to sign the acknowledgement that he received it. Brown was advised that he could appeal the decision through the administrative remedy program directly to the Office of General Counsel within thirty days. (Wahl Decl. ¶¶ 16-24.)

         Brown was transferred to the SMU at USP Lewisburg on January 3, 2016. He alleges that while housed in the SMU on February 4, 2016, he was assaulted by an inmate and suffered numerous fractures to [his] eye socket[] and other facial[] and head injuries, ” requiring him to be hospitalized.” (Brown Decl. ¶ 25.)

         Brown argues that Warden Ratledge referred him to the SMU as retaliation for the 2009 assault on staff at USP Atwater.[6] Brown also argues that Warden Ratledge violated BOP Policy Statement § 541.41(c)(1), which states that the warden may not refer an inmate for placement in a control unit if the inmate shows evidence of significant mental disorder or major physical disabilities as documented in a mental health evaluation or a physical examination. 28 C.F.R. § 541.41(c)(1).[7] (Compl. 7; CFR Printout, Dkt. No. 1, Attach. 1, at 11.)

         Finally, Brown argues that Warden Ratledge denied him due process, subjected him to cruel and unusual living conditions by referring him to SMU, and denied his right to free speech by denying his “right to exhaust his administrative remedies.” (Compl. 8-9.)


         A. Summary Judgment Standard

         Federal Rule of Civil Procedure 56(a) provides that a court should grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In order to preclude summary judgment, the dispute about a material fact must be “‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). If the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250.

         In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993) (“The summary judgment inquiry thus scrutinizes the plaintiff's case to determine whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial.”); Sakaria v. Trans World Airlines, 8 F.3d 164, 171 (4th Cir. 1993) (finding that the district court properly did not consider inadmissible hearsay in an affidavit filed with motion for summary judgment). In the Fourth Circuit, verified complaints by pro se prisoners are to be considered as affidavits and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge. Williams v. Griffin,952 F.2d 820, 823 (4th Cir. 1991). However, unsworn argument or statements do not constitute evidence to be considered in opposition to ...

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