The opinion of the court was delivered by: John E. Jones III United States District Judge
This pro se civil rights action was filed by Everton Bartley ("Plaintiff"), an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania ("USP-Lewisburg"). Named as sole Defendant is USP-Lewisburg Warden Joseph V. Smith. Service of the complaint was previously ordered.
In response to the complaint, the Defendant filed a motion to dismiss or in the alternative, for summary judgment. See doc. 18. After Plaintiff failed to respond to the Defendant's dispositive motion, this Court issued an Order on December 18, 2006, granting Bartley a final opportunity to January 22, 2007 in which to file and serve a response to the pending dispositive motion. The Order forewarned Plaintiff that failure to timely respond would be deemed a failure to prosecute and result in dismissal of his action with prejudice under Rule 41(b). When this Court reviewed the docket of this matter on January 23, 2007 and discovered that an opposing brief had not been filed, an Order closing the case for failure to prosecute was issued. However, later that same day an opposing brief was filed by Bartley. Since the opposing brief was dated January 3, 2007, it will be deemed timely filed under the standards announced in Houston v Lack, 487 U.S. 266 (1988)( a prisoner's complaint is deemed filed at the time it is given to prison officials for mailing to the Court).
Bartley states that he was convicted of federal charges in the State of North Carolina. He is presently serving a life sentence. His complaint adds that he was also the subject of an Immigration Hearing but "no Deportation Order issued." Doc. 1, ¶
IV. Plaintiff claims that he was subjected to a discriminatory removal from his institutional employment. He correctly notes that his present claim was previously raised a habeas corpus petition, which this Court dismissed without prejudice. See Bartley v. Smith, Civil No. 4:CV-05-1742 (M.D. Pa. Aug. 2005)(Jones, J.).
Bartley's habeas corpus petition alleged that he was subjected to a "race based dismissal from UNICOR" caused by his supervisor's "biased attitude, conduct and behavior." See id., doc. 1, ¶ 9(b). His petition added that although prison officials are apparently claiming that his job removal was due to the presence of an immigration detainer, that reasoning is flawed because although he was previously the subject of an "Immigration Hearing" and "there was no decision to deport me made at that time." Id. at (a). Bartley also noted that there was never an immigration proceeding initiated as a result of his ongoing federal sentence.
Plaintiff's present Complaint adds that his removal from institutional employment violated his due process rights under the Fifth Amendment. He contends that similarly situated prisoners still retain their prison jobs. Bartley also maintains that Bureau of Prisons' National Inmate Appeals Coordinator Harrell Watts conspired to conceal the discriminatory job removal. Plaintiff seeks preliminary injunctive relief, namely, reinstatement to his former prison employment with full back pay.
The Defendant claims entitlement to entry of summary judgment on the grounds that: (1) Bartley has no right to a prison job; (2) Warden Smith is entitled to qualified immunity; and (3) Plaintiff has not satisfied his burden for an award of preliminary injunctive relief.
Discussion Standard of Review
As noted above, the Defendant has filed a motion seeking dismissal or in the alternative, entry of summary judgment. The motion is accompanied by evidentiary materials [documents] outside the pleadings which are relevant for purposes of both determining the issue of administrative exhaustion as well as their alternative arguments. 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, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed. R. Civ. P. 12(b). The Court will not exclude the evidentiary materials [documents] accompanying the Defendant's motion. Thus, it will be treated as solely seeking summary judgment.
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is ...