United States District Court, M.D. Pennsylvania
A. RICHARD CAPUTO, District Judge.
Presently before the Court is Magistrate Judge Carlson's Report and Recommendation ("R & R") (Doc. 6) recommending dismissal of Plaintiff Derrick Foster's Complaint (Doc. 1) and Motion for Injunction and Temporary Restraining Order (Doc. 2). Also before the Court are Foster's Objections to the R & R (Doc. 8) and his Motion for Appointment of Counsel (Doc. 9). Defendants have not filed anything in this action. Because Foster's claims regarding events in 2008-2010 are time-barred, his claims regarding events that occurred in McKean and Loretto, Pennsylvania are more appropriately brought in United States District Court for the Western District of Pennsylvania ("W.D. Pa."), and his claim against Defendant Fink for disposing of his personal property and failing to file an administrative remedy form for Foster does state a claim upon which relief can be granted, the R & R will be adopted in part and rejected in part. The claims against Defendants Parker, Fegley, McKee and Recktenwald will be dismissed, and claims against Defendants Maiorana, Griffiths, O'Donnell, Eckenrode, Entzel, and Meeks will be severed and transferred to the W.D. Pa. Because Plaintiff does not meet the standard for counsel to be appointed, his motion to appoint counsel will be denied without prejudice.
A. Factual Background
Plaintiff Foster's claims arise out of incidents that occurred while he was incarcerated at the Federal Correctional Institute in Allenwood, Pennsylvania (FCI-Allenwood), the Federal Correctional Institute in Loretto, Pennsylvania (FCI-Loretto), and the Federal Correctional Institute in McKean, Pennsylvania (FCI-McKean).
The facts, as stated in the complaint, are as follows:
On or about August 5, 2008, while incarcerated at FCI-Allenwood, Plaintiff Foster filed an institutional grievance claiming that Acting Warden Jeffrey Raleigh made false statements in his Inmate Central File. (Doc. 1, 4.) Foster contends that in retaliation, on August 8, Raleigh made a request to increase Foster's security level to medium from low, which was accepted by Warden David Ebbert. ( Id. ) In August 2010, Plaintiff filed an action against FCI-Allenwood employees ( Foster v. Raleigh et al., terminated December 22, 2010). ( Id. ) He alleges that he was retaliated against and threatened in response. ( Id. )
In July 2012, Defendant William Fink became Foster's unit counselor at FCI-Allenwood. ( Id. ) Shortly thereafter, Foster alleges that Counselor Fink "made a fraudulent representation" about Foster on an incident report. ( Id. ) He placed Foster in the Segregated Housing Unit ("SHU") and unsuccessfully tried to block Foster's transfer from FCI-Allenwood's medium-security division to a low-security facility, FCI-Loretto. ( Id. at 5.)
Additionally, Foster contends that Fink did not turn in Foster's Federal Bureau of Prisons ("BOP") administrative remedy form BP-9 to the Warden. ( Id. ) On July 11, 2012, Foster contends that Fink threw away most of Foster's personal property, including legal papers he had helped draft for another inmate, Inmate Stephens, when Foster was transferred to FCI-Loretto as the result of the transfer that Fink had tried to block.
On August 3, 2012, Foster arrived at FCI-Loretto. ( Id. ) Foster alleges that Warden Maiorana and other employees would not assist him in sending the legal papers he had drafted before his transfer to Inmate Stephens, still at FCI-Allenwood. ( Id. ) Warden Maiorana denied Foster's request to put Stephens on his contact list, as prisoners generally cannot correspond with each other. Foster alleges that he and Stephens fall under one of the exceptions, "witness in a legal action in which both inmates are involved." (Id. )
On November 30, 2012, Plaintiff was in a common area of FCI-Loretto when another inmate told him that Correctional Officer ("CO") Griffiths and another CO were in his room, "packing out" his belongings, including the legal papers for Inmate Stephens. ( Id. at 6.) When he arrived at his room, the COs questioned him about the legal papers, and said he was not allowed to have them. ( Id. ) They brought him to meet with Lt. Cuomo, who told him that an incident report was being filed and he was being placed in the SHU for lying to staff, continuing his correspondence with Stephens, and asking Stephens for $1, 500. ( Id. ) While Foster was in the SHU in December 2012, Warden Maiorana expressed that his "problem with" Foster was that he requested another inmate pay him $1, 500. ( Id. at 7.) Foster explained that he was not asking Stephens for the money, rather, he was asking the judge in Stephens' case to reimburse him that amount for his legal services. ( Id. )
On December 4, 2012, Foster went before the Unit Disciplinary Committee in connection with this incident, and received sixty (60) days without phone or commissary access as a sanction. ( Id. ) On December 7, Unit Manager Entzel told Foster that his cellmate, inmate Greer, had "gotten smarter" since being in a cell with Foster, and so he (Entzel) was going to put Foster in for a transfer to a medium-security prison. ( Id. )
On January 6, 2013, while in the SHU, Foster showed CO Griffiths correspondence from the judge in Inmate Stephen's case, which Foster asserts said that the legal papers taken from Foster should be returned. ( Id. at 7-8.) After showing this to CO Griffiths, Griffiths placed a call to see if Foster could be removed from the SHU. ( Id. at 8.) After this call, Griffiths informed Foster that he (Foster) was in the SHU not because of the legal papers, but because of his request for $1, 500. ( Id. ) Griffiths told Foster that he could not be released from the SHU into the general population, as he had "pissed-off" his unit manager, who was putting him in for a transfer. ( Id. ) He told Foster that he would have to file an administrative remedy. ( Id. ) At some point between then and the filing of this complaint on July 17, 2014, Foster was transferred to FCI-McKean.
B. Procedural Background
Plaintiff filed his Complaint (Doc. 1) and Motion for Injunction and Temporary Restraining Order (Doc. 2) on July 10, 2014. He brings claims against twelve (12) prison officials at the three (3) prisons where he has been incarcerated (FCI-Allenwood, FCI-Loretto, and FCI-McKean) asking for relief pursuant to 42 U.S.C. §§ 1983, 1985, and 1986.
Plaintiff also filed a request for a temporary restraining order and preliminary injunction pursuant to Federal Rule of Civil Procedure 65(b) (Doc. 2), asking that Defendants Charles Maiorana, Charles Entzel, P. Griffiths, S. O'Donnell, Tony Eckenrode, Monica Recktenwald, William Fink, and Charles Samuels, Director of the Federal Bureau of Prisons, respond to an Order to Show Cause. ( Id. ) Foster asked that these defendants "cease and desist unjust acts" for "administration detention/segregation" and "administrative transfers/security issues, " as well as "exoneration and vindicate inmate central files of false reports" and "civil action fees and association of costs lossed." ( Id. at 1-2.)
On July 21, 2014, Magistrate Judge Carlson issued the R & R (Doc. 6), recommending that Plaintiff's motion to proceed in forma pauperis be granted, but that the complaint be dismissed for failure to state a claim upon which relief can be granted, pursuant to the screening requirement of the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e et seq, ("PLRA"). In the alternative, he recommended that the allegations against defendants located in the Western District of Pennsylvania be ...