United States District Court, W.D. Louisiana, Lake Charles Division
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
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”). 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”).
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.
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.
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.
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.
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.
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.
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.
Law A. Frivolity Review
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)).
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).
42 U.S.C. § 1983/Bivens
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).
Rule 8 ...