Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Damon Landor v. B.A. Bledsoe

May 25, 2012

DAMON LANDOR, PLAINTIFF
v.
B.A. BLEDSOE, WARDEN; : B. TRATE, CAPTAIN; AND LT. HEPNER, DEFENDANTS



The opinion of the court was delivered by: (Magistrate Judge Carlson)

(Judge Caldwell)

MEMORANDUM ORDER

I. INTRODUCTION

This action was brought as a Bivens*fn1 action by Damon Landor, an inmate in the Special Management Unit at the United States Penitentiary at Lewisburg ("USPLewisburg"). In his amended complaint, Landor alleges that Warden B.A. Bledsoe, Captain Trate, and Lieutenant Hepner at USP-Lewisburg subjected him to unlawful excessive force in July 2010, by having him removed from his prison cell and placed in ambulatory restraints for a period of five days after the Plaintiff was found to have become non-compliant and threatening to prison staff. (Doc. 29) Specifically, Landor claims that the Defendants are liable for authorizing him to be removed from his cell with force and using ambulatory restraints against him between July 5, 2010, and July 10, 2010, after he refused orders to remove his arm from the food slot that he was obstructing, and after he threatened to throw feces on any staff member who came near his cell.

Defendants moved for dismissal or summary judgment on Plaintiff's claims nearly half a year ago, on October 27, 2011, and served Plaintiff with their statement of material facts and brief in support of the motion on November 10, 2011. (Docs. 33, 39, 40) The Court entered an order directing Landor to file a responsive brief by December 8, 2011. (Doc. 43) Landor failed to respond by this date, but later informed the Court that he was "having problems with the administration" at the prison, and claimed that in late November 2011, prison officials confiscated his legal materials and other property, thereby rendering him unable to respond to the motion. (Doc. 45) In response, the Court entered an order directing the Defendants to provide Landor with additional copies of the motion, brief, and statement of facts by January 6, 2012, and directed Landor to file a responsive brief by January 31, 2012. (Doc. 49) Landor was served with these documents a second time on January 5, 2012. (Doc. 50)

On January 24, 2012, Landor moved for an extension of time to respond to the motion, and the Court directed the Plaintiff to respond on or before February 14, 2012. (Docs. 52, 53) On February 6, 2012, the Court again enlarged Landor's response deadline to February 27, 2012, and directed the Defendants to make inquiries to ensure that the Plaintiff had been given access to legal materials consistent with the security needs of the prison. (Doc. 55)

After Landor again failed to file a response in accordance with the Court's orders, we entered an order directing the Defendants to file a document with the Court explaining whether Landor had been given access to his legal materials, consistent with the security needs of the prison, since entry of the February 6, 2012, order. (Doc. 58) Defendants timely responded, and informed the Court that although Landor's personal property had been removed from his cell on January 27, 2012, as part of an official investigation, it had been returned to him on February 7, 2012. (Doc. 59) Furthermore, the Defendants reported that Landor spent 14.6 hours in the prison law library since December 1, 2011, including four hours on January 27, 2012, two and one-half hours on January 31, 2012, and more than three and one-half hours on February 22, 2012. (Id.)

Despite having had notice of the Defendants' dispositive motion since November 2011, and despite having had access to his legal materials and the ability to conduct legal research in the prison law library for several months, the Plaintiff failed to file a brief in response to the motion. Upon consideration, we concluded that notwithstanding the brief period when he was deprived of his legal materials, Landor had sufficient time and opportunity to file a response, and he unreasonably failed to do so. Accordingly, we found it appropriate to consider the motion as filed, and recommended that the District Court grant the motion by dismissing Landor's claims against Defendants Bledsoe and Trate with prejudice, and dismiss the claims against Defendant Hepner without prejudice to Landor's attempting to correct the deficiencies we identified in the complaint by amending his pleading within 20 days of any ruling by the District Court.

The Plaintiff failed to file objections to our report and recommended disposition. Accordingly, on May 17, 2012, the District Court entered an order adopting this Court's report and recommendation, and dismissed Plaintiff's claims against Defendants Bledsoe and Trate with prejudice, and dismissed Plaintiff's claims against Defendant Hepner without prejudice to Plaintiff's right to file an amended complaint within 20 days. (Doc. 72) Following this order, Plaintiff is required to file an amended complaint on or before June 6, 2012, or risk having this action dismissed in its entirety with prejudice. (Id.)

Although Landor declined to file an objection to the report and recommendation, while the report was pending before the District Court, Landor filed two motions that are now before this Court. In the first motion, Landor seeks the entry of a "protective order" and the continuance of this action in order permit Landor time to hire an attorney. (Doc. 67) In support of this motion, Landor alleges that officials at USP-Lewisburg are responsible for losing a "tremendous amount" of unspecified legal materials and unidentified legal mail. (Id.) Landor represents that he "cannot afford to jeopardize his case" under allegedly "unlawful" conditions at USP-Lewisburg. (Id.) In baldly conclusory fashion, Landor expresses his concern that his case may be jeopardized under "unlawful" conditions at the prison, and that he will suffer violation of his First Amendment rights.

As noted above, when Landor initiated this action, and when he later amended his complaint, his claims were limited to allegations that Warden Bledsoe, Captain Trate, and Lieutenant Hepner violated his rights under the Eighth Amendment to the United States Constitution by subjecting him to ambulatory restraints following an incident of serious misconduct. As a result of the District Court's order, these claims have been conclusively dismissed with respect to Messrs. Bledsoe and Trate, and the same claims against Defendant Hepner have been dismissed without prejudice to Plaintiff attempting to replead the claim against this Defendant if he does so by June 6, 2012. (Doc. 72)

In contrast, Plaintiff's pending motion improperly seeks to expand upon the limited claims brought in this action to include entirely new legal claims and allegations that all post-date this incidents that formed the basis for Plaintiff's claims in this litigation. Thus, it appears that Mr. Landor now seems to be alleging that as a result of bringing this lawsuit, he has been subjected to retaliation by corrections officers or officials at USP-Lewisburg in 2012. In this regard, Landor claims that in January 2012 his prison cell was searched and corrections officers temporarily removed his property, including legal materials. Landor also complains about the manner and condition in which these materials were later returned to him. (Doc. 67, at 2)

Landor also alleges that in March 2012, an envelope in which he had placed a "soy bean pattie," an item Landor apparently intended to mail to the Court, was improperly taken or never delivered. (Id.) It appears that Landor intended to mail this food article to the Court as an exhibit in support of a document or brief that he planned to file in this action. As a result of the alleged mishandling or destruction of this soy bean patty exhibit, which Landor suggests was retaliatory, Landor asks the Court to compel the parties named in this lawsuit to produce video footage that Landor claims would prove he handed the food product exhibit to a correction officer during the night hours of March 11, 2012.*fn2 (Id.)

Landor also claims that in April 2012, he was wrongfully accused of damaging prison-owned barber clippers worth less than $70.00. Landor concludes, without explanation, that he was accused of this infraction in retaliation for suing the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.