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Terry v. Brown

United States District Court, W.D. Louisiana, Lake Charles Division

December 27, 2017

JOSHN TERRY BOP # 15408-032

         SECTION P



         Before the court is a civil rights complaint filed in forma pauperis by pro se plaintiff Josh Terry (“Terry”). Terry is an inmate in the custody of the Federal Bureau of Prisons (“BOP”).[1] He is currently incarcerated at the Federal Correctional Institute in Beaumont, Texas, (“FCIB”). However, he complains about events that occurred during his incarceration at the Federal Correctional Institute in Oakdale, Louisiana (“FCIO”).

         This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the court.



         Terry claims that he was wrongfully held in FCIO's administrative segregation in the Special Housing Unit (“SHU”). He states that he was in general population at FCIO from December 16, 2015, to April 25, 2016. Doc. 1, p. 5. He claims that he was placed in SHU on April 25, 2016, at 2:25 a.m., for the purpose of an SIS investigation for “refusal of UA, insolence toward staff.” Id. He states that he received the incident report regarding the matter on the morning of April 25, 2016. Id. However, he claims that he was told that there was not an incident report in his file, which he contends is necessary in order for an investigation to be done. Id. at 7. He maintains that, without an incident report, any investigation “is a sham and deprivation of Due Process Rights.” Id.

         Terry contends that several BOP Program Statements were not followed in regard to his SHU placement, including that he never received an original “ADO.” Id. at 5. He states that he was not given SHU review forms on a timely basis and that the forms falsely state that he appeared at the reviews when he never left his cell. Id. at 13. He claims that periodic reviews were “rubberstamped at every stage” and that the only thing he was told about his SHU confinement was that “SIS wants you here.” Id. at 5, 13-14; doc. 7, p. 2.

         Terry complains about the “harsh disparities between general population and SHU.” Doc. 1, p. 8. He states that SHU inmates are only allowed one hour per day to exercise outside, spend twenty-three hours a day in their cell and eat all meals there, and have restricted access to the commissary, phone, visitation, mail, personal property, clothing, and educational, religious, and recreational programs. Id. at 8, 14-15. He also complains about the lack of natural light and fresh air in his cell. Id. at 8.

         Terry maintains that the toxic effects of prolonged segregation are enhanced in his situation because he is not in SHU for disciplinary reasons and that the length of his SHU confinement is potentially limitless. Id. at 9. He states that the prolonged segregation could adversely impact his mental health but that he was never seen by an outside psychologist, despite being told on three occasions that he had an appointment. Id.

         Terry claims that he was denied access to the courts as the staff threw away his commissary submission thus preventing him from sending mail to the courts. Id. at 14. He states that this action was retaliatory. Id. He also claims that, despite filing a grievance concerning his need for eye glasses, he was not given an appointment causing him to have migraine headaches when doing paperwork. Id. Terry attached copies of several grievances that he filed regarding the alleged violations of his civil rights as well as the responses thereto. Doc. 1, att. 1, pp. 1-16.

         Terry was transferred from FCIO to FCIB no later than May 13, 2017. Doc. 8. As relief in regard to his SHU confinement at FCIO, Terry asked: (1) to be released from SHU or transferred to another prison; (2) that the staff involved in the violations of his rights be fired or suspended pending an investigation of their conduct; (3) for expungement of his central file in regard to this matter; (4) for punitive damages against Warden Calvin Johnson for the infliction of mental and emotional distress; and (5) for $200.00 per day for each day that he was held in SHU. Doc. 1, p. 17.


         Applicable Law A. Frivolity Review

         Terry has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Doc. 6. This Act directs a district court to dismiss an action if the court determines that it is frivolous or malicious or fails to state a claim on which relief may be granted. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998) (citing 28 U.S.C. § 1915(e)(2)(B)(i) and (ii)).

         A complaint is frivolous if it lacks an arguable basis in law or fact. Gonzalez v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998). A complaint fails to state a claim upon which relief may be granted if it is clear the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). When determining whether a complaint is frivolous or fails to states a claim upon which relief may be granted, the court must accept plaintiff's allegations as true. Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995) (frivolity); Bradley, 157 F.3d at 1025 (failure to state a claim).

         B. 42 U.S.C. § 1983/Bivens

         Federal law provides a cause of action against any person who, under the color of state law, acts to deprive another person of any right, privilege, or immunity secured by the Constitution and laws of the United States. 42 U.S.C. § 1983. A Bivens action is the counterpart for those acting under color of federal law of a suit brought under § 1983. E.g., Abate v. Southern Pacific Transp. Co., 993 F.2d 107, 110 n. 14 (5th Cir. 1993); see also Dean v. Gladney, 621 F.2d 1331, 1336 (5th Cir. 1980). Thus, the initial question is whether the plaintiff has alleged that his constitutional rights have been violated. If no constitutional violation has been alleged, there is no cognizable claim that would entitle the plaintiff to relief. In order to hold the defendants liable, a plaintiff must allege facts to show (1) that a constitutional right has been violated and (2) that the conduct complained of was committed by a person acting under color of federal law; that is, that the defendant was a government actor. See West v. Atkins, 108 S.Ct. 2250, 2254-55 (1988).

         C. Rule 8 ...

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