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Osvaldo v. Warden

February 28, 2006

DIAZ PABON OSVALDO, PLAINTIFF
v.
U.S.P. LEWISBURG WARDEN, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Kosik

MEMORANDUM

Diaz Pabon Osvaldo filed this Bivens*fn1 action pursuant to 28 U.S.C. § 1331 on January 24, 2005. He is currently confined at the United States Penitentiary at Coleman, Florida. Along with the complaint, he has submitted an appendix which attaches copies of his grievances and responses thereto with regard to the claims raised in the complaint. This appendix will be considered as part of the complaint in this action.*fn2 The complaint concerns Osvaldo's previous confinement in the Special Management Unit (SMU) at the United States Penitentiary at Lewisburg (USPLewisburg), Pennsylvania. Named as defendants are the Warden at USP-Lewisburg, the Northeast Regional Director of the Bureau of Prisons and the Director of the Bureau of Prisons. In his complaint, Osvaldo raises several due process challenges to his placement in the SMU. He contends that he was transferred from the Special Housing Unit to the SMU without first receiving a hearing, that his transfer was based upon an incident which occurred at a prior institution and for which he already completed his sanction, and that if he refuses to participate in the SMU program, he will receive an incident report or be required to remain in the SMU for a longer period of time. Osvaldo also appears to contend that his confinement in the SMU violated his Eighth Amendment rights because the SMU has a "lockdown condition" to the extent that he was only permitted out of his cell for recreation one (1) hour per day and had restricted access to the commissary. He also appears to allege a violation of the Eighth Amendment with regard to being transferred to the SMU in April of 2004, because he "already completed a disciplinary sanction imposed by the DHO with regard to an earlier incident report."

I. Background

On July 25, 2003, Osvaldo was found guilty by a Disciplinary Hearing Officer at USP-Lewisburg of committing the prohibited acts of Assault with Serious Injury and Possession of a Dangerous Weapon. (Doc. 1, Appendix to Compl. at 10). Osvaldo has a history of disciplinary behavior, including five (5) findings that he committed the prohibited act of Possessing a Weapon. Further, he has also held leadership positions within a BOP prison gang.

On September 4, 2003, Osvaldo was approved for placement into the Special Management Unit at USP-Lewisburg because he was unable to function and remain in the general population due to his behavior. Such placement is authorized for inmates who have participated or played a leadership role in a Bureau recognized prison gang or who staff have determined present security concerns within the institution. (Doc. 1, Appendix to Compl., 11/7/03 Response by Reg'l Director to Grievance.) Placement in the SMU is designed to develop an inmate's skills necessary to co-exist with other inmates. Inmates in the SMU may obtain a handbook containing information about the SMU but are not entitled to receive copies of paperwork with regard to their transfer into the unit. (Id.)

Osvaldo claims that upon completing a period of disciplinary segregation in the Special Housing Unit at USP-Lewisburg, he was transferred into the SMU program. (Doc. 1, Compl. at 2.) He contends that he was not provided with any paperwork authorizing his placement there, and received no hearing. Because he heard that an inmate's refusal to participate in the program would result in an incident report, Osvaldo states that he chose to participate in the program. He argues, however, that the failure to provide him with a hearing and the service of additional disciplinary time in the SMU violated due process because he completed his disciplinary sanction in the SHU. He contends that he has been on lockdown status from 2001 to the present without reasonable cause, allegedly in violation of the Eighth Amendment.*fn3

Pending are Plaintiff's motion requesting the court to "set up a subpoena or writ of habeas corpus ad testificandum to a deposition under oath before a stenographer or/and before the court" (Doc. 25) and a motion for order compelling discovery*fn4 (Doc. 45). Also pending is Defendants' ripe motion to dismiss the complaint (Doc. 28), Plaintiff's motion for preliminary injunction (Doc. 39) and Plaintiff's Motion for Summary Judgment (Doc. 46).

II. Discussion

A. Motion to Set Up Subpoena/Writ of Habeas Corpus Ad Testificandum by Court

Plaintiff has filed a motion requesting the court to issue subpoenas, schedule depositions and order the government to assume the costs of these fees based upon his in forma pauperis status. (Doc. 25.) He specifies various individuals whom he wishes to depose, under oath, including the Wardens/Administrators of the following Special Management Control Units: Arizona Department of Corrections, Pennsylvania Department of Corrections, and New Jersey Department of Corrections, as well as other "witness people". (Doc. 25 at 2.) He appears to request that the court pay for the expenses associated with conducting this discovery because the SMU does not offer any employment whereby he can obtain money. (Doc. 33 at 2.)

For the following reasons the court will deny the instant motion. In a civil rights action, the parties conduct their own discovery pursuant to the Federal Rules of Civil Procedure. There are specific Rules which address the procedures for conducting depositions and issuing subpoenas. The court customarily does not become involved with the discovery stage of a case unless a discovery dispute cannot be resolved by the parties.

There is no indication that Plaintiff has attempted to conduct discovery on his own. Further, the fact that he cannot afford the type of discovery he seeks does not require the court to fund his efforts. Pursuant to 28 U.S.C. § 1915, Osvaldo has been granted in forma pauperis status for the purpose of filing fee payment. Section 1915 does not provide that Plaintiff is exempt from the costs associated with discovery.*fn5

Furthermore, due to the disposition of Defendants' motion to dismiss which follows, there is no need to conduct discovery in this case. Accordingly, the motion will be denied.

B. Motion for Preliminary Injunction

Plaintiff seeks a preliminary injunction ordering his transfer from USPLewisburg due to their alleged inappropriate handling of his mail. (Doc. 39.) While his submission is at times difficult to decipher, it appears that Osvaldo contends that USP-Lewisburg employees do not send out his mail as they should. As a result, he contends that documents submitted to the court for filing appear on the docket several days later than they should. Osvaldo concludes that Defendants, in mishandling his outgoing mail, are retaliating against him.

Preliminary injunctive relief is extraordinary in nature and should issue in only limited circumstances. See American Tel. and Tel. Co. V. Winback and Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994), cert. denied, 514 US. 1103 (1995). Moreover, issuance of such relief is at the discretion of the trial judge. Orson, Inc. v. Miramax Film, Corp., 836 F. Supp. 309, 311 (E.D. Pa. 1993). In determining whether to grant a ...


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