The opinion of the court was delivered by: : (Judge Caputo)
On April 5, 2011, Plaintiff Clarence J. Robinson, a federal prisoner formerly incarcerated at the Lewisburg United States Penitentiary (USP-Lewisburg), in Lewisburg, Pennsylvania, filed this Bivens*fn1 action pursuant to 28 U.S.C. § 1331.*fn2 Named as defendants are the following Bureau of Prisons (BOP) employees: BOP Northeast Regional Director J. L. Norwood; BOP National Inmate Appeals Administrator Harrell Watts; and Warden B.A. Bledsoe.
Mr. Robinson avers that "the Federal Bureau of Prisons is trying to
compel [him] to participate in a non-punitive program ... called the
(SMU) Special Management Unit." (Doc. 1, Compl., p. 2.)*fn3
As relief, he seeks his immediate release from the SMU and
monetary damages "for every injury I've suffered." (Id., p. 4.)
Presently before the Court is the BOP Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. (Docs. 13, 36, 47 and 57.) Mr. Robinson has filed a response to Defendants' motion, and Defendants have filed a Reply Brief. (Docs. 44 and 50.) Also pending are three Motions to Amend the Complaint. (Docs. 36, 47 and 57.) Mr. Robinson did not brief two of the three motions as required by Local Rules 7.5.*fn4 Likewise, Mr. Robinson did not submit a proposed amended complaint in support of any of his motions as required by Local Rule 15.1.*fn5 Defendants filed briefs in opposition to each motion to amend. (Docs. 39, 51 and 59.)
For the reasons set forth below, the Defendants' motion for summary judgment will be granted and Plaintiff's motions will be denied.
A. The BOP's SMU Programs
The SMU is a non-punitive program that was implemented by the BOP to manage inmates who have been involved in, or played a leadership role in, a disruptive incident involving some type of gang activity (racial, geographic or otherwise), or who have a significant disciplinary history and have chronically not been able to function in general population, or has otherwise participated in, or were associated with, activity such that greater management of the inmate's interaction with other persons is necessary to ensure the safety, security, or orderly operation of BOP facilities, or for the protection of the public. (Doc. 16, Defs.' Statement of Material Facts (DSMF), ¶ 3 and ¶ 10.) The SMU provides inmates with a number of self-study and individualized activities geared toward the development of behavior and values that will allow for them to function successfully in general population institutions. (Id. ¶ 4.) The SMU program encompasses a multi-phase approach designed to teach inmates self-discipline, pro-social values, and to facilitate the participants' ability to successfully coexist with members of other geographical, cultural and religious backgrounds. (Id. ¶ 5.) Ordinarily, the SMU program is completed in 18-24 months. (Id. ¶ 6.) An inmate's progression through the SMU's four program levels is based on their satisfactory compliance and completion of behavioral and programming objectives specific to each level as evaluated by institution and SMU staff. See Doc. 16-1, Attach. B, Program Statement P5217.01, Special Management Units, at pp. 21-24. However, if an inmate continues to exhibit disruptive conduct after 6 additional months in the SMU, the inmate may be referred for designation to another appropriate facility, consistent with the orderly running and operations of BOP institutions. (Id., p. 25.)
USP-Lewisburg's SMU began accepting inmates in September 2002. (DSMF ¶1.) At that time, the SMU was confined to one housing unit at the facility and housed approximately 80 inmates. (Id. ¶ 2.) In 2009, the BOP expanded USP-Lewisburg's SMU program to an institution-wide program with the exception of a work cadre unit. (Id. ¶¶ 2, 7-8.) With respect to inmates like Mr. Robinson who have been referred for SMU participation after November 19, 2008, the BOP's Program Statement 5217.01, Special Management Units, applies and sets forth the specific "referral procedures" for placement in the SMU program. (Id. ¶11.) The referral procedure includes the following:
a. referral by the Unit Team to the Warden which, once approved by the Warden, is submitted to the Regional Director;
b. if the Regional Director determines sufficient evidence exists, a hearing is conducted by a Hearing Examiner to determine whether the inmate meets the criteria for SMU designation;
i. 24-hour advance pre-hearing notice is provided to the inmate giving sufficiently detailed explanation of the reasons for the referral;
ii. the inmate is provided the opportunity to appear at the hearing, make an oral statement and present documentary evidence and written witness statements;
c. based on information obtained during the referral process and presented at the hearing, the Hearing Examiner will consider whether the inmate meets the criteria for the SMU program. The Hearing Examiner will make a recommendation to the Designation and Sentence Computation Center (DSCC) which will review the report, and after consultation with the Assistant Director, Correctional Programs Division, Central Office, indicate whether SMU referral is approved;
d. The inmate is provided the post-decision notice and his right to appeal.
Id. ¶11 and Doc. 16-1, pp.16-18.
B. Mr. Robinson's SMU Placement
Mr. Robinson is presently serving a life sentence for drug related charges. See Doc. 16-1 at p. 2, Romano Decl., ¶ 2. On June 23, 2009, Defendant Norwood was the Warden of USP-Victorville, in Victorville, California where Mr. Robinson was housed. (DSMF ¶12.) On this date, Warden Norwood approved a request from Mr. Robinson's Unit Team to transfer him to USP-Lewisburg's SMU program. (Id. ¶13; see also Doc. 16-1, p. 28, Request for Transfer/Application of Management Variable.) The rationale for his referral was that:
Inmate Robinson has received several serious incident reports while at USP Victorville to include, Possession of a Weapon, Possessing Intoxicants and Engaging in Sexual Acts. Inmate Robinson has disregarded the rules and regulations at this facility and has demonstrated he has no intention of modifying his behavior. His conduct not only disrupts the good orderly running of the facility, but also creates an unsafe environment for inmates and staff alike. The Unit Team concurs, this offender requires greater controls and supervision than a traditional penitentiary setting provides. Accordingly, the Unit Team requests this offender be considered for transfer to the Special Management Unit at USP Lewisburg.
DSMF ¶ 14.*fn6 On August 7, 2009, Mr. Robinson received notification that he was scheduled for a hearing before a Hearing Administrator to determine whether he should be transferred to a SMU. (Id. ¶15;*fn7 see also Doc. 16-1, pp. 30-33.) He was advised of the reason for his referral - his "poor institutional adjustment" and "incident reports for Engaging in Sexual Acts 2x, Possession of a Dangerous Weapon, and Possessing Intoxicants" which render him a management problem and a disruption to the orderly running of the institution. (DSMF ¶ 15.) He was also provided with notice of his opportunity to appear at the hearing; to make an oral statement; to present documentary evidence and written witness statements on his behalf; and his right to receive a copy of the Hearing Administrator's Report and right to appeal the decision. See Doc. 16-1, p. 32. Mr. Robinson received his referral hearing on August 7, 2009. (DSMF ¶ 16; Doc. 16-1, p. 34, Hearing Administrator's Report on Referral for Designation to a SMU.) Mr. Robinson appeared at the hearing via telephone-conference and made an oral statement which was summarized by the Hearing Administrator as follows: "I've been down for 14 years. No fights. No drugs. No violence. I don't know why would someone put me on the list ...