Alward v. Newell

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MATTHEW KEITH ALWARD, )

) CASE NO. 4:24CV0935

Plaintiff, )

) JUDGE BENITA Y. PEARSON

v. )

)

BRIAN NEWELL, et al., ) MEMORANDUM OF OPINION

) AND ORDER

Defendants. ) [Resolving ECF Nos. 2, 7, 10, and 11]

Pro Se Plaintiff Matthew Keith Alward filed this action against Elkton Federal Satellite

Low (“FSL Elkton”), FSL Elkton Warden Healey, FSL Elkton Case Manager Brian Newell, and

the Federal Bureau of Prisons (“BOP”). In the Complaint (ECF No. 1), Plaintiff claims that

Newell hindered his ability to qualify for placement in a residential re-entry center because he

refused Newell’s offer to engage in sexual activity. He contends this violated his Eighth

Amendment rights. Plaintiff seeks monetary damages.

I. Background

Plaintiff alleges that in July 2023, he asked Newell what he needed to do to transfer to the

camp within the prison. He claims Newell told him he needed to be cleared of all pending

criminal charges. In August 2023, Plaintiff received confirmation from the Washtenaw County

Court that he received a final disposition of the charges pending against him. Plaintiff contends

Newell was not in the office on the day he received the documentation of the disposition, so he

gave the paperwork to another counselor who promised to forward it to Newell. Plaintiff claims

he saw Newell in the conference room on August 14, 2023 and asked if he had received the

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paperwork. See ECF No. 1 at PageID #: 3. Newell indicated that he had received the

information and would remove the pending charge and management variable from Plaintiff’s

prison record “if we played a little.” ECF No. 1 at PageID #: 3. Plaintiff states that he

understood this to mean that Newell was proposing that they engage in sexual conduct, an offer

he declined. Plaintiff contends that Newell then claimed he would not remove the pending

charge and management variable from his prison file. Plaintiff claims the information in his file

made him ineligible for federal time credits and placement in a residential re-entry center. See

ECF No. 1 at PageID #: 3. Plaintiff alleges Newell subjected him to cruel and unusual

punishment in violation of the Eighth Amendment.

Plaintiff was transferred to FCI Allenwood Low prior to filing the Complaint (ECF No.

1) in the United States District Court for the Southern District of Ohio (Case No. 1:24-cv-265).1

On May 29, 2024, the case was transferred to this Court due to improper venue in the Southern

District of Ohio.

1 According to the BOP website (https://www.bop.gov/inmateloc/ (last visited

Aug. 16, 2024)), Plaintiff is currently housed at FCI Cumberland.

Plaintiff has failed to provide the court with his current address. It is the party,

not the court, who bears the burden of apprising the court of any changes to his mailing

address. See Yeschick v. Mineta, 675 F.3d 622, 630 (6th Cir. 2012) (citing Casimir v.

Sunrise Fin., Inc., 299 Fed.Appx. 591, 593 (7th Cir. 2008) (affirming district court’s

denial of Fed. R. Civ. P. 60(b) motion when movants claimed due to house fire they did

not receive mail informing them of court’s entry of summary judgment); Soliman v.

Johanns, 412 F.3d 920, 922 (8th Cir. 2005) (“[A] litigant who invokes the processes of

the federal courts is responsible for maintaining communication with the court during the

pendency of his lawsuit.”); Watsy v. Richards, No. 86-1856, 1987 WL 37151, at *1 (6th

Cir. April 20, 1987) (affirming dismissal for failure to prosecute when appellant failed to

provide district court with “current address necessary to enable communication with

him”).

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II. Standard for Dismissal

Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,

365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is

required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a

claim upon which relief may be granted or if it lacks an arguable basis in law or fact. Neitzke v.

Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v.

City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). An action has no arguable basis in law or

fact when it is premised on an indisputably meritless legal theory or when the factual contentions

are clearly baseless. Neitzke, 490 U.S. at 327.

A cause of action fails to state a claim upon which relief may be granted when it lacks

“plausibility in th[e] complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A

pleading must contain a “short and plain statement of the claim showing that the pleader is

entitled to relief.” Ashcroft v. Iqbal , 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P.

8(a)(2)). The factual allegations in the pleading must be sufficient to raise the right to relief

above the speculative level on the assumption that all the allegations in the complaint are true.

Twombly, 550 U.S. at 555. The plaintiff is not required to include detailed factual allegations,

but must provide more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a simple recitation of the

elements of a cause of action will not meet this pleading standard. Id. In reviewing a complaint,

the court must construe the pleading in the light most favorable to the plaintiff. Bibbo v. Dean

Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).

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II. Law and Analysis

A.

Before proceeding to the merits of this claim, the Court must decide whether Bivens2

provides a cause of action in this context. Congress provided a specific damages remedy for

Plaintiffs whose constitutional rights were violated by state officials through 42 U.S.C. § 1983.

They, however, did not provide a corresponding remedy for constitutional violations by federal

officials. In Bivens, the Supreme Court recognized an implied damages action to compensate

persons injured by federal officers who violated the Fourth Amendment’s prohibition against

unreasonable searches and seizures. Since then, the Court has allowed Bivens remedies in only

two other contexts: (1) in a Fifth Amendment gender discrimination case, Davis v. Passman,

442 U.S. 228 (1979); and (2) in an Eighth Amendment Cruel and Unusual Punishments Clause

case, Carlson v. Green, 446 U.S. 14 (1980). The Court has not approved of an implied damages

remedy under the Constitution itself. Ziglar v. Abbasi, 582 U.S. 120, 131-32 (2017). The

Supreme Court recently clarified that principles of separation of powers dictate that Congress

and not the Courts should determine when to authorize a damages suit. Id. For this reason, the

Supreme Court instructed that federal courts should refrain from extending Bivens outside of the

three specific contexts in which it has already been applied, absent the presence of special

factors.

2 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971).

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In addition, the Court declined to extend Bivens to claims against the United States, any

federal agency, or any federal employees sued in their official capacities. See FDIC. v. Meyer,

510 U.S. 471, 484-86 (1994); Okoro v. Scibana, 63 Fed.Appx. 182, 184 (6th Cir. 2003) (stating

that a federal prisoner can not bring a Bivens action against the BOP). The BOP is an agency of

the United States Government and FSL Elkton is a prison operated by the BOP. Bivens claims

cannot be brought against these Defendants. Id. The claims against them fail to state a claim as

a matter of law.

B.

Furthermore, Bivens claims cannot be brought against a defendant under a theory of

respondeat superior. Jones v. City of Memphis, 586 F.2d 622, 625 (6th Cir.1978) (“the theory of

respondeat superior would be fundamentally inconsistent with the import of Bivens”) (internal

quotation marks and citation omitted). Supervisors may not be held liable for the

unconstitutional conduct of their subordinates based solely on a mere right to control employees

or on a failure to act. Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir.1999) (citing Leach v.

Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (1989)). Instead, “supervisory liability requires some

‘active unconstitutional behavior’ on the part of the supervisor.” Peatross v. City of Memphis,

818 F.3d 233, 241 (6th Cir. 2016) (quoting Bass, 167 F.3d at 1048). Plaintiff must show that the

supervisor somehow encouraged or condoned the actions of her employees. Id. Consequently,

unless the plaintiff affirmatively pleads facts demonstrating the direct involvement of the

defendant in the allegedly unconstitutional action, the complaint fails to state a claim against that

defendant and dismissal is warranted. Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).

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Plaintiff alleges that Warden Healy “was charged with the safety of inmates.” Supplemental

Complaint (ECF No. 6). He further claims “notice was given to Warden and staff but was

ignored.” ECF No. 6. Plaintiff, however, does not explain this statement. These allegations do

not demonstrate that Warden Healey was personally involved in the proposal for sexual activity

or that he actively approved of the Case Manager’s alleged actions. These claims are based on a

respondeat superior theory of liability and do not state a claim under Bivens.

C.

The only remaining claim is Plaintiff’s Eighth Amendment claim asserted against

Newell. Eighth Amendment claims arguably fall within one of the three contexts already

recognized for Bivens claims. Plaintiff, however, fails to state a claim for relief against Newell

under the Eighth Amendment.

The Eighth Amendment imposes a constitutional limitation on the power of the states to

punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene

society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981). The

Eighth Amendment protects inmates by requiring that “prison officials . . . ensure that inmates

receive adequate food, clothing, shelter, and medical care, and . . . ‘take reasonable measures to

guarantee the safety of the inmates.’ ” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting

Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). This, however, does not mandate that a

prisoner be free from discomfort or inconvenience during her incarceration. Ivey v. Wilson, 832

F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). Prisoners are not

entitled to unfettered access to the medical treatment of their choice, see Hudson v. McMillian,

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503 U.S. 1, 9 (1992), nor can they “expect the amenities, conveniences and services of a good

hotel.” Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988); see Thaddeus-X v. Blatter,175

F.3d 378, 405 (6th Cir. 1999). In sum, the Eighth Amendment affords the constitutional

minimum protection against conditions of confinement which constitute health threats, but does

not address those conditions which cause the prisoner to feel merely uncomfortable or which

cause aggravation or annoyance. Hudson, 503 U.S. at 9-10 (requiring extreme or grave

deprivation).

The Supreme Court in Wilson v. Seiter, 501 U.S. 294, 298 (1991), set forth a framework

for courts to use when deciding whether certain conditions of confinement constitute cruel and

unusual punishment prohibited by the Eighth Amendment. A plaintiff must first plead facts

which, if true, establish that a sufficiently serious deprivation has occurred. Id. Seriousness is

measured in response to “contemporary standards of decency.” Hudson, 503 U.S. at 8 (citation

omitted). Routine discomforts of prison life do not suffice. Id. Only deliberate indifference to

serious medical needs or extreme deprivations regarding the conditions of confinement will

implicate the protections of the Eighth Amendment. Id. at 9. A plaintiff must also establish a

subjective element showing the prison officials acted with a sufficiently culpable state of mind.

Id. Deliberate indifference is characterized by obduracy or wantonness, not inadvertence or

good faith error. Whitley v. Albers, 475 U.S. 312, 319 (1986). Liability cannot be predicated

solely on negligence. Id. A prison official violates the Eighth Amendment only when both the

objective and subjective requirements are met. Farmer, 511 U.S. at 834.

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“Not every unpleasant experience a prisoner might endure while incarcerated constitutes

cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at

954. Although cases of sexual assault and severe instances of sexual abuse are sufficiently

serious to violate the Eighth Amendment, Rafferty v. Trumbull Cnty., 915 F.3d 1087, 1095 (6th

Cir. 2019) (male prison official’s sexual harassment of a female prisoner by demanding on

multiple occasions that the prisoner expose herself and masturbate while the official watched and

intimidated her into complying violated the Eighth Amendment), isolated, brief, and not severe

instances of sexual harassment, without more, do not give rise to Eighth Amendment violations.

See Walker v. Baker, No. 23-1232, 2023 WL 6380124, at *2-3 (6th Cir. Sept. 27, 2023)

(officer’s sexually suggestive comments to an inmate did not meet the Eighth Amendment

objective standard); Violett v. Reynolds, 76 Fed.Appx. 24, 27 (6th Cir. 2003) (finding that an

officer’s suggestion of sexual favors was not sufficient to state Eighth Amendment claim);

Johnson v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (male prisoner’s

claim that a male officer placed his hand on the prisoner’s buttock in a sexual manner and made

an offensive sexual remark did not meet the objective component of the Eighth Amendment).

Here, Plaintiff alleges that Newell suggested that they “play a little.” ECF No. 1 at

PageID #: 3. He does not indicate that this suggestion was made more than once, or that Newell

in any way attempted physical interaction with Plaintiff. Plaintiff indicates that Newell refused

to remove a management variable from his prison record. His allegations describe verbal

harassment, not physical abuse or prolonged severe sexual harassment. Plaintiff’s claim against

Newell does not meet the objective standard of an Eighth Amendment claim.

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III. Conclusion

Accordingly, this action is dismissed pursuant to 28 U.S.C. § 1915(e). Plaintiff’s

Motions to Appoint Counsel (ECF Nos. 2 and 7), Plaintiff’s Motions for Order to Supply

Certified Copy of Trust Account and for Release from Segregation; Use of Phone and Law

Library; Paperwork Access; and No Contact and Gag Orders (ECF No. 10) (filed on June 7,

2024), and Plaintiff’s Motions to Schedule a Hearing for the Motions filed on June 7, 2024 and

for Status of this Case (ECF No. 11) are denied as moot. The Court certifies, pursuant to 28

U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.

The Clerk is directed to issue a copy of this Memorandum of Opinion and Order by

regular mail to Matthew Keith Alward, #22732-040, FCI Cumberland, P.O. Box 1000,

Cumberland, MD 21501.

IT IS SO ORDERED.

August 16, 2024 /s/ Benita Y. Pearson

Date Benita Y. Pearson

United States District Judge

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