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SMITH v. CARLSON

March 23, 1978

CALVIN F. SMITH, Plaintiff
v.
NORMAN CARLSON, et al., Defendants


R. DIXON HERMAN UNITED STATES DISTRICT JUDGE.


The opinion of the court was delivered by: HERMAN

This action had its genesis in a habeas corpus action filed by Plaintiff on October 7, 1975, in the United States District Court for the District of Columbia. SMITH v. CARLSON, Civil No. 75-1656 (D.D.C., filed Oct. 7, 1975). That action was transferred to this Court. Civil No. 75-1541 (M.D. Pa., filed Dec. 17, 1975). In that action, Plaintiff challenged the constitutionality of this transfer from the Lorton Correctional Complex, Virginia, to the United States Penitentiary, Lewisburg, Pennsylvania. *fn1"

 The record in Civil No. 75-1541 indicates that in 1973 Plaintiff was sentenced to three concurrent terms for violating the District of Columbia Code: Petitioner received a life term for first degree murder, a five to fifteen year term for first degree burglary and a second five to fifteen year term for armed robbery. Pursuant to section 24-425 of the D.C. Code, *fn2" the Attorney General of the United States designated Lorton as Plaintiff's place of confinement. On September 25, 1975, while on furlough from Lorton, Plaintiff was arrested at Union Station, Washington, D.C., as he was about to board a train to New York City. At the time of his arrest, Plaintiff was carrying a sawed-off shotgun. The next day, September 26, 1975, Plaintiff was transferred to the United States Penitentiary at Lewisburg, Pennsylvania, without a hearing. Plaintiff alleged that upon his arrival at Lewisburg, he was segregated for one month. He did not allege that he lost any good time or was otherwise disciplined upon arriving at Lewisburg. *fn3" Plaintiff is still confined at Lewisburg. On October 8, 1976, this Court denied the petition for a writ of habeas in Civil No. 75-1541 for failure to exhaust administrative remedies, noting that if administrative appeals proved futile, further review would then be available. *fn4"

 Plaintiff filed the instant action on February 18, 1977. In his complaint, Plaintiff alleges that the defendant prison officials have made "a concerted and systematic effort . . . to keep plaintiff from pursuing his [administrative] remedies" and have attempted to transfer him from Lewisburg in retaliation for his previously having filed suit against them. As relief, Plaintiff seeks damages and an order enjoining Defendants from transferring him to the United States Penitentiary at Leavenworth, Kansas.

  On March 22, 1977, Petitioner filed a document which the Court construed as an amendment to his complaint. *fn5" The amendment adds allegations challenging the validity of Petitioner's transfer from Lorton to Lewisburg on September 26, 1975.

 Presently before the Court is Defendants' motion to dismiss, or, in the alternative, for summary judgment. Petitioner has opposed Defendants' motion. Plaintiff has also moved for partial summary judgment on the issue of the validity of the transfer from Lorton to Lewisburg. Defendants have opposed this motion.

 Count I

 The Court will treat Plaintiff's allegations that Defendants are preventing him from pursuing administrative remedies and that they are attempting to transfer him out of a retaliatory motive.

 Plaintiff's contention that Defendants are attempting to prevent him from pursuing administrative remedies will be dismissed as frivolous under 28 U.S.C. ยง 1915 (d). See CLARK v. ZIMMERMAN, 394 F. Supp. 1166, 1178 (M.D. Pa. 1975) (no chance of success on merits). Bureau of Prisons Policy Statement No. 2001.6A (10-18-74) requires an inmate who wishes to file a request for administrative remedy to "give the completed form [BP-9] to the designated staff member who in turn will provide a signed receipt for him".

 B.P. Statement No. 2001.6A at 3. The only facts alleged by Plaintiff in support of his contention appear at Paragraph 9 of his complaint and indicate that he mailed his requests to Warden Fenton. Thus, Plaintiff's own factual allegations demonstrate that he did not follow the procedure prescribed by B.P. Statement 2001.6A for filing a request for administrative remedy. Plaintiff's failure to follow the prescribed procedure can hardly be characterized as "a concerted and systematic effort by defendants used to keep plaintiff from pursuing his remedies". Complaint at para. 11.

 With the dismissal of Plaintiff's allegations that Defendants are preventing him from pursuing administrative remedies, the only issue remaining in Count I is whether, as Plaintiff alleges, Defendants are seeking to transfer him in retaliation for his having previously filed suit against them. *fn6" Defendants have moved that Plaintiff's request for an order enjoining Defendants from transferring him to Leavenworth be dismissed as moot. From the affidavit of Case Management Coordinator Sinsheimer, see Document 23, it is clear that Plaintiff is no longer scheduled to be transferred to Leavenworth. However, Sinsheimer states that Plaintiff is now scheduled for transfer to Atlanta and is being held in Lewisburg, "pending the resolution of litigation in the U.S. District Court". In view of Sinsheimer's representation that Plaintiff is being held in this District pending the disposition of this litigation, and in view of the fact that he is no longer scheduled for transfer to Leavenworth, the Court will dismiss his request for injunctive relief as moot. As no transfer to Leavenworth is now contemplated, Plaintiff has suffered no injury and his claim for damages will also be dismissed. *fn7"

 Count II

 The Court considers the Lorton transfer issue as a habeas corpus claim and will treat it as Count II. As noted above, this Court denied habeas corpus relief to Plaintiff on this issue in Civil No. 75-1541 on the grounds that he had not pursued administrative remedies within the United States Bureau of Prisons. Defendants contend that this count should again be dismissed because Plaintiff has still not exhausted administrative remedies.

  As of the date that Plaintiff filed the amendment to his complaint raising the Lorton issue, *fn8" he had filed a request for administrative remedy and a regional appeal from the denial of that request. *fn9" Whether or not Plaintiff filed an appeal with the Central Office is disputed. Defendants contend that he did not, see Affidavit of Clair Cripe (Document 29, filed May 23, 1977), and even if he did, that he did so after the filing of this action and the amendment raising the Lorton issue, in disregard of the Third Circuit's holding in United States ex rel. SANDERS v. ARNOLD, 535 F.2d 848 (1976) (administrative remedies must be exhausted prior to the filing of a habeas corpus action). *fn10" See ...


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