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Widi v. Federal Bureau of Prisons

United States District Court, D. New Hampshire

May 2, 2016

David J. Widi, Jr.
v.
Federal Bureau of Prisons et al.[1]

          T. David Plourde, Esq., Terry L. Ollila, Esq.

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff David Widi's “Second Amended Complaint” (doc. no. 105) is before the court and subject to preliminary review, pursuant to 28 U.S.C. § 1915A and LR 4.3(d)(1). Pursuant to 28 U.S.C. § 1915A(b), the court may dismiss claims asserted in an inmate's pleading if the court lacks subject matter jurisdiction, a defendant is immune from the relief sought, the complaint fails to state a claim, or the action is frivolous or malicious. The standard applied in determining if the pleading states a claim is in the June 24, 2014, Report and Recommendation (“R&R”) (doc. no. 4), approved on July 23, 2014. See Order (doc. no. 9).

         Background

         Widi is a federal prisoner who was previously incarcerated at the Federal Correctional Institution (“FCI”) in Berlin, New Hampshire, and at FCI Ray Brook in New York. Widi filed this action in the New Hampshire Superior Court in Coös County in early February 2014, and the federal defendants removed the case to this court in April 2014. In a June 24, 2014, R&R (doc. no. 4), this magistrate judge recommended, among other things, that the district judge dismiss all claims asserted in the original complaint, except certain First Amendment retaliation claims asserted against individual federal employees under Bivens v. Six Unknown Fed. Narc. Agents, 403 U.S. 388 (1971). The district judge approved that R&R. See July 23, 2014, Order (doc. no. 9).

         Plaintiff filed the (first) Amended Complaint, adding new claims under Bivens and the Federal Tort Claims Act (“FTCA”), on October 9, 2014. Defendants filed motions to dismiss certain claims in that pleading. See Mots. Dismiss (doc. nos. 68, 70, 81). This court denied each of those motions, without prejudice, without ruling on their merits, after plaintiff, in lieu of objecting, filed the Second Amended Complaint (doc. no. 105). See Nov. 20, 2015, Order (doc. no. 106).

         Claims

         The court uses a numbering system for the claims in the Second Amended Complaint (“SAC”), tracking Widi's claim numbers in that pleading, and uses letters and Roman numerals in this R&R to identify subparts of those claims. The claims asserted in the SAC are summarized below:

1. Defendants engaged in adverse acts against Widi in retaliation for Widi's speech or conduct, protected under the First and Fourteenth Amendments, giving rise to their liability under (A) Bivens; (B) the FTCA; (C) state common law; and (D) 42 U.S.C. § 1983, in that:
i. In retaliation for Widi's filing grievances at FCI Ray Brook, FCI Ray Brook defendants Gluc, Matteau, Salamy, Gonyea, and Hudson, in January 2014:
a. miscalculated Widi's custody score to keep him at a medium security level, and
b. effected Widi's transfer to FCI Berlin;
ii. In retaliation for Widi's filing grievances at FCI Ray Brook, FCI Berlin defendant Mullens refused to correct Widi's custody level calculation, in order to keep Widi classified as a medium security inmate;
iii. In retaliation for Widi's filing of grievances at FCI Ray Brook, FCI Berlin supervisors Tatum and Sullivan approved and authorized Mullens's actions, knowing that her actions were unconstitutional;
iv. In retaliation for Widi's filing of grievances at FCI Berlin, FCI Berlin defendant Mullens refused to correct Widi's custody level calculation, in order to keep Widi classified as a medium security inmate;
v. In retaliation for Widi's filing of grievances at FCI Berlin, FCI Berlin supervisors Tatum and Sullivan approved and authorized Mullens's actions, knowing that her actions were unconstitutional; and
vi. In retaliation for Widi's filing of this lawsuit on February 11, 2014, Mullens assigned Widi a new job, and then did not provide him with notice of the assignment, resulting in Widi's transfer to the Special Housing Unit (“SHU”) on February 13, 2014, and in disciplinary proceedings against him because of his failure to report to his new job station.
vii. Defendants Hayden and Tobias denied Widi access to legal materials, and/or threatened to do so, in that:
a. in retaliation for Widi's complaints to prison officials about being deprived of a mattress, Hayden took away Widi's law library printouts on April 2, 2014;
b. Hayden and Tobias, on April 10, 2014, threatened to take away all of Widi's legal materials while Widi attended an appointment with a surgeon, to retaliate against Widi for, and to discourage him from, seeking medical attention.
viii. Defendants initiated a series of false incident reports, to retaliate against Widi for complaining about prison conditions to prison officials, in 2014, specifically:
a. Nos. 2551906 (Feb. 22), 2552067 (Feb. 23), and 2552492 (Feb. 24), each of which involved a period of disciplinary segregation;
b. Nos. 2553636 (Feb. 27), 25566527 (April 2), 2570923 (April 13), 2571464 (April 14), 2572035 (April 15), 2572041 (April 16), and 2574751 (Apr. 23), some of which were expunged;
c. Nos. 2607053, 2607186 and 2607183 (July 18); 2607414, 2607295, and 2607416 (July 19), some of which were expunged;
d. Nos. 2619226, 22619449, 2619454, and 2619452 (Aug. 20), some of which were expunged; and
e. Nos. 2621949 (Aug. 26); 2625296 (Sept. 4); 2631302 (Sept. 21/23); 2631304 (Sept. 24); 2633713 (Sept. 28); 2634018-20 and 2634284 (Sept. 29); 2634291 and 2634470 (Sept. 30); and 2648672 (Nov. 7), some of which were expunged.
ix. Defendants, with the approval of Galletta, McGurn, Birkholtz, Tatum, and Norwood, in 2014, subjected Widi to excessive force and misapplied restraints:
a. On February 21 and February 22, in retaliation for Widi's refusal of a medical assessment; b. On February 27, in retaliation for Widi's refusal of an assignment to a hostile cell environment, and refusal of a medical assessment, and on April 24, for Widi's refusal of an assignment to a hostile cell environment;
c. On July 18-19, in retaliation for Widi's refusal of an assignment to a hostile cell, refusal of a medical assessment, and/or his ...

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