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Jerome A. Porter-Bey v. Harley G. Lappin

February 27, 2012

JEROME A. PORTER-BEY,
PLAINTIFF,
v.
HARLEY G. LAPPIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Jerome A. Porter-Bey, a former federal prisoner proceeding pro se and in forma pauperis, filed this civil action on May 3, 2010, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the violation of civil rights by federal actors. (ECF No. 1.) Plaintiff's Complaint is now before the Court for screening.

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, malicious," or that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

III. SUMMARY OF COMPLAINT

Plaintiff identifies the following individuals as defendants in this action: (1) Harley G. Lappin, Director, Federal Bureau of Prisons (BOP); (2) Harrell Watts, BOP Administrator; (3) Robert E. McFadden, Western Regional Director; (4) Hector A. Rios, Jr., Warden, United States Penitentiary, Atwater (Atwater); (5) David Shinn, Associate Warden of Program, Atwater; (6) J. Bell, Associate Warden, Atwater; (7) Drehe, CMC, Atwater; and (8) J. Cuifo, Unit Manager, Atwater.

Plaintiff alleges the following: On May 22, 2009, Plaintiff was notified of his referral for placement in the Special Management Unit (SMU) because of his disciplinary history. (Compl. at 4.) At a hearing six days later Plaintiff asserted that he had already been punished for some of his past infractions and the remaining disciplinary issues were on appeal. "The overseeing hearing officer stated that: 'the S.M.U. is non-punitive and is apart and separate from any disciplinary infractions imposed . . . .'" (Id.)

Plaintiff was placed in the SMU where he experienced limited privileges and extensive periods of lock-down; conditions that are "'atypical and/or imposes a significant hardhsip.'" (Id. at 4, 5.) These restrictive conditions are reserved for individuals who have violated prison rules. The regulations that provided for an inmate with Plaintiff's disciplinary record to be placed in the SMU were promulgated after Plaintiff's infractions. (Id. at 5.)

Plaintiff asserts that his SMU placement violated his Due Process rights, the Ex Post Facto Clause, and the Administrative Procedure Act.

IV. ANALYSIS

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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.

A. Due Process

The Due Process Clause protects against the deprivation of liberty without due process of law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In order to invoke the protection of the Due Process Clause, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Id. Liberty interests may arise from the Due Process Clause itself, or from an expectation or interest created by prison regulations. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding "more adverse conditions of confinement." Id. The existence of a liberty interest created by prison regulations is determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84 (1995). Such liberty interests are "generally limited to ...


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