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Perry Adron Mccullough v. Defendants Federal Bureau of Prisons

December 6, 2010

PERRY ADRON MCCULLOUGH,
PLAINTIFF,
v.
DEFENDANTS FEDERAL BUREAU OF PRISONS, ET AL., (DOC. 62) DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN OBJECTIONS DUE WITHIN THIRTY-DAYS

I. Procedural History

Plaintiff Perry Adron McCullough ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff filed this action on February 24, 2005, in the United States District Court for the District of Columbia. (Doc. 1, attach. 1.) The action was transferred to the Eastern District on May 11, 2006. (Doc. 1.)

Currently pending before the Court is Plaintiff's second amended complaint, filed March 30, 2009. (Doc. 62.) The second amended complaint names Defendants Federal Bureau of Prisons ("FBOP"), Wackenhut Corrections Corporation ("WCC"), R. D. Andrews, John Pendleton, H. J. Gardner, Terry Craig, Bob Stiefert, Matthew Holm, F. Dougherty, F. Bucholz, J. Toews, Barbara Steward, G. Puentes, T. Bianco, and J. Cruz. Plaintiff is seeking monetary damages.

II. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C § 1915(e)(2)(B).

In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).

Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. However, although the pleading standard is now higher, prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 611 F.3d 1202, 1204-05 (9th Cir. 2010) (citations omitted).

III. Complaint Allegations

Plaintiff is currently housed at the Federal Correctional Institution in Safford, Arizona. The incidents that are the subject of this action occurred from early 2001 to mid 2002 while Plaintiff was housed at the Federal Correction Facility in Taft ("Taft"), California. (Doc. 62, ¶ 22.)

After a racial incident that resulted in a lockdown at Taft, Defendant Andrews issued an order for each unit to select a Caucasian, Hispanic, and Black inmate representative to meet with administration to discuss problems at the institution. Plaintiff was selected as the Caucasian representative. (Id., ¶ 24.) Plaintiff attended a meeting on October 28, 2001, in which Defendant Andrews said that "he wanted and expected complete candor from the inmate representatives, and that there would be no retaliation for said candor." (Id., ¶ 25.)

At a meeting on October 31, 2001, Plaintiff was instructed by Defendant Andrews "to prepare a [p]roposal for construction of a 'Par Course' on the [r]ecreation [y]ard. A representative from each ethnic group, including Plaintiff, was to meet with Defendant Andrews when the proposal was completed. (Id., ¶ 26.) On November 21, 2001, the Hispanic representative, inmate Uribe, drafted a letter and requested Plaintiff sign it. Plaintiff refused. (Id., ¶ 27.)

On November 22, 2001, Defendants Andrews, Pendleton, Gardner, and Holmes allegedly caused Plaintiff to be confined to the Special Housing Unit ("SHU") without cause or written notice of the charges due to the letter incident. (Id., ¶ 28, 35.) On November 26, 2001, Defendant Holm allegedly authored a false incident report charging Plaintiff with "[e]ngaging in, or encouraging a group demonstration . . . and, [c]onduct which disrupts or interferes" with the running of the institution. The incident, involving a food/work strike, occurred while Plaintiff was housed in the SHU. (Id., ¶ 29.) An officer attempted to serve Plaintiff with an Administration Detention Order ("ADO") on November 28, 2001, allegedly in violation of 28 C.F.R. § 541.22,*fn1 which Plaintiff refused to accept. (Id., ¶ 30.)

From November 28, 2001 to May 15, 2002, Plaintiff attempted to remedy the "unlawful confinement" in the SHU due to the untimely notice of the ADO. Plaintiff alleges he addressed the issue with Defendant's Dougherty, Bianco, and Craig. (Id., ¶ 31.) On April 11, 2002, Defendant Andrews responded to a congressional inquiring letter by falsely claiming that Plaintiff was placed in the SHU on November 23, 2001, an attempt was made to serve the ADO on Plaintiff that same day, and an additional attempt to deliver a copy of the ADO was made one week later. (Id., ¶ 32.)

Plaintiff alleges that during the time he was attempting to get released from the SHU, "Defendant Holm repeatedly entered [the] SHU for the sole purpose of trying to intimidate and chill [Plaintiff]." (Id., ¶ 33.) Sometime in February 2002, Defendant Holm accused Plaintiff of attempting to cause another disturbance by sending messages out of the SHU. When Plaintiff denied knowing about any messages, Defendant Holm wrote an incident report accusing Plaintiff of lying to an officer. The charges were upheld by "both the [Unit Discipline Committee ("UDC")] and the DHO." (Id.)

Plaintiff requested that the inmate representatives, Uribe and Benson, be allowed to testify in his defense and that "Recreation and Education Supervisor Runyon" be allowed to act as his staff representative. Runyon met with Plaintiff around December 4, 2001, and expressed to Plaintiff that he wanted to "beat them on this." (Id., ¶ 34.) The following day Runyon failed to come to the SHU to meet with Plaintiff to prepare for the hearing. Runyon sent a message that he would have to decline to represent Plaintiff. Several days later Plaintiff was told by Law Librarian Smith that Runyon had been pressured to refuse to assist Plaintiff with his defense. (Id.)

A DHO hearing was held on December 21, 2001, by Defendant Bianco. Defendant Bianco refused to allow Plaintiff to be present during the testimony of Uribe and Benson. At the conclusion of the hearing, Plaintiff was absolved of charges brought by Defendant Holm that Plaintiff lied to an officer, but was found ...


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