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DAVIS v. U.S.

October 6, 2005.

MICHAEL DAVIS, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.



The opinion of the court was delivered by: A. CAPUTO, District Judge

MEMORANDUM

I. Introduction

Plaintiff, Michael Davis, an inmate at the United States Penitentiary-Allenwood ("USP-Allenwood") in White Deer, Pennsylvania, commenced this pro se action with a Bivens*fn1 civil rights complaint (Doc. 1). Named as Defendants are the United States of America,*fn2 as well as the following USP-Allenwood officials: Warden Troy Williamson; CODE*fn3 Coordinator Dr. Marie Trgovac; discipline hearing officer ("DHO") Todd Cerney; and CODE treatment specialists Steve Confair, Richard Drivers, and Suzanne Mitchell. The thrust of Plaintiff's allegations is that: (1) Defendants conspired to and did retaliate against him for previously filing a claim for injunctive relief against them; (2) Plaintiff was denied due process at a disciplinary hearing; and (3) Williamson acquiesced in the retaliation of his subordinates. (Doc. 1 at 5.) Plaintiff seeks declaratory and injunctive relief, compensatory and punitive damages, and expungement of his misconduct from his disciplinary record.

  Presently pending before the Court is Defendants' motion to dismiss and for summary judgment (Doc. 13). The motion has been briefed, and it is ripe for disposition. For the reasons set forth below, Defendants' motion for summary judgment will be granted.

  II. Background*fn4

  Plaintiff was a participant in the USP-Allenwood CODE program, a program aimed at teaching inmates positive social values and life skills. Dr. Marie Trgovac is the Coordinator of the CODE program. It appears from the record that Plaintiff and Trgovac were often at odds, and Plaintiff ultimately initiated litigation against Trgovac and others in this Court. Plaintiff alleges that all of his difficulties at USP-Allenwood have stemmed from Defendants' resentment over this litigation.

  On May 25, 2004, an officer conducting a cell search allegedly found a seven-inch sharpened metal rod taped inside a locked locker which contained Plaintiff's personal belongings. As a result of the discovery, Plaintiff was charged with the prohibited act of possession, manufacture or introduction of a weapon. Although Plaintiff does not dispute that the locker was his, he claims that the weapon was planted in his locker by Defendants, in retaliation for his legal action and his acrimony with Trgovac.

  In preparation for his disciplinary hearing on the weapon charge, Plaintiff alleges that he requested various Defendants to view the surveillance tape of his cell, to verify that the weapon was planted by Defendants; he claims this request was made of Warden Williamson on May 28, 2004, of interviewing officer Lt. Zoda "approximately one week later," of Mr. Snyder on June 3, 2004, of staff representative Wolever on June 8-10, 2004, and of DHO Cerney on July 19, 2004. (Doc. 20 at 7-9.) However, Plaintiff was told that the videotape was no longer available because it had been "recycled due to standard time passage."

  A disciplinary hearing for the weapon charge was held on July 21, 2004, and Plaintiff was found guilty. As a sanction for the violation, Plaintiff was disciplined with sixty (60) days disciplinary segregation, and he has forfeited no good conduct time for the incident. Plaintiff claims that he was denied due process at the hearing, as a result of a conspiracy among Defendants in retaliation for the litigation against Trgovac. Plaintiff infers that the requested tape was deliberately destroyed, that the alleged weapon had previously appeared in another inmate's cell, and Defendants had planted that weapon in his cell to fabricate the violation.

  III. Discussion

  A. Motion to Dismiss Standard

  Defendants have filed a motion to dismiss Plaintiff's complaint. The motion to dismiss is based, in part, upon a contention that Plaintiff's complaint fails to state a claim upon which relief can be granted, as provided by Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b) provides in part as follows: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . .

 Fed.R.Civ.P. 12(b). Defendants' brief in support of the motion includes exhibits (Doc. 18-2) which incorporate several declarations, two DHO reports, two administrative remedies, and an operations memorandum for the CODE program. Since the Court will not exclude the supplemental materials, the motion ...


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