United States District Court, D. New Hampshire
David J. Widi, Jr., Plaintiff
Federal Bureau of Prisons, et al., Defendants Opinion No. 2016 DNH 144
J. Widi, Jr., pro se
David Plourde, Esq.
L. Ollila, Esq.
J. McAuliffe United States District Judge.
plaintiff, David Widi, Jr., is a federal prisoner who was
formerly incarcerated at the Federal Correctional Institution
(“FCI”) in Ray Brook, New York, and more recently
at FCI Berlin, in Berlin, New Hampshire. He is currently
incarcerated at FCI Pollock, in Pollock, Louisiana. Widi
brings this action seeking declaratory and injunctive relief,
as well as monetary damages, for numerous injuries and
slights he claims to have suffered while he was incarcerated
at both FCI Ray Brook and FCI Berlin.
Second Amended Complaint (document no. 105) spans nearly
ninety pages, includes more than 480 numbered paragraphs, and
advances a panoply of constitutional, statutory, and common
law claims against more than 80 defendants. Pending before
the court is the Magistrate Judge’s Report and
Recommendation, in which she has conducted a preliminary
review of Widi’s Second Amended Complaint, attempted to
bring some order and organization to Widi’s pleading,
and sought to decipher the precise nature (and viability) of
Widi’s claims. Many of the nineteen
“counts” in Widi’s second amended complaint
advance several distinct legal claims. Generally speaking,
the Magistrate Judge has, where possible, broken down each of
those counts into four constituent parts, with lettered
sections describing the legal nature of the claim advanced.
That is, section (A) of those counts are brought as
Biven actions; section (B) are claims under the
FTCA; section (C) are claims pursuant to 42 U.S.C. §
1983; and section (D) are state common law claims. Perhaps
not surprisingly, several of Widi’s claims have
numerous subsections as well - hence, the somewhat complex
numbering system employed by the Magistrate Judge.
due consideration of Widi’s objection (document no.
141), as well as his reply memorandum (document no. 147), I
herewith approve the Report and Recommendation of Magistrate
Judge Andrea K. Johnstone dated May 2, 2016 (document no.
119), with one minor exception, as noted below. Accordingly:
1. Widi’s Second Amended Complaint (document no. 105)
shall be the operative complaint in this proceeding. All
claims advanced in Widi’s original Complaint (document
no. 1) and/or his First Amended Complaint (document no. 21)
are dismissed to the extent they were not repeated in the
second amended complaint as counts 1 through 19.
2. Bivens claims. The Bivens claims in the
Second Amended Complaint and identified in the Report and
Recommendation as Claims 1(A)(vii) and 1(A)(x)-(xi) are
dismissed for failure to state a claim.
The Bivens claims identified in the Report and
Recommendation as Claim 8(A), as well as that portion of
Claim 7(A) relating to the alleged deprivation of a mattress,
are dismissed, without prejudice, for Widi’s failure to
comply with the PLRA’s exhaustion requirement.
3. FTCA claims. Widi’s claims under the
Federal Tort Claims Act (“FTCA”) - that is,
Claims 1(B)(vii)(a)-(b) and subpart (B) of claims 2-8 - are
dismissed, without prejudice, for lack of jurisdiction under
4. Common Law and Section 1983 Claims. All claims
advanced in the Second Amended Complaint pursuant to state
common law and 42 U.S.C. § 1983 are dismissed for
failure to state a claim. As identified by the Magistrate
Judge, those are subparts (C) and (D) of claims 1-17, as well
as Claim 19 in its entirety.
5. Individual Defendants. All claims asserted
against Public Health Service Officers Kans Booz Lewis and
Lirissa McCoy are dismissed for failure to state a claim.
All claims against the following defendants are also
dismissed: FCI Berlin defendants Kathy Bilodeau, R. Brown, B.
Cooper, Kristen Croteau, FNU Early, Angelo Giamusso, FNU
Hawes, Joshua Hulume, W. Knight, FNU Kuznecow, FNU ...