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Vazquez-Castro v. Office of General Counsel

United States District Court, D. New Hampshire

September 12, 2017

Jose A. Vazquez-Castro
v.
Office of General Counsel, Federal Bureau of Prisons, U.S. Department of Justice, P. Deveney, S. Labrenz, J. Buesche, D. Shuler, M. Lejeune, B. Beagle, FCI Berlin Warden Esker Tatum, Jr., Warden R. Hazlewood, and Capt. FNU Duck

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Before the court is plaintiff Jose A. Vazquez-Castro's complaint and complaint addenda (Doc. Nos. 1, 4, 4-1, 6, 6-1, 7, 7-1).[1] These filings are before the court for preliminary review under 28 U.S.C. § 1915A and LR 4.3(d)(1).

         Preliminary Review Standard

         The magistrate judge in this court conducts a preliminary review of prisoner complaints filed in forma pauperis. See LR 4.3(d)(1). The magistrate judge may recommend to the district judge that claims be dismissed if, among other things, the court lacks jurisdiction, a defendant is immune from the relief sought, or the complaint fails to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A(b)(1); LR 4.3(d)(1)(A). In conducting its preliminary review, the court construes pro se complaints liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). The complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief.'” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

         Background

         Vazquez-Castro was an inmate at the Federal Correctional Institution in Berlin, New Hampshire (“FCI Berlin”) in 2015-2016, before he was transferred in June 2016 to a different Federal Bureau of Prisons (“BOP”) facility, FCI Ray Brook in New York. Vazquez-Castro alleges that in March 2015, FCI Berlin Case Manager P. Deveney received information indicating that Vazquez-Castro had been in a fight. Vazquez-Castro states that the information Deveney received was false. Based on that information, on March 13, 2015, Deveney caused Vazquez-Castro to be transferred to the FCI Berlin Special Housing Unit (“SHU”). Vazquez-Castro remained in SHU for three months while the matter was investigated, until he was cleared of wrongdoing.

         Vazquez-Castro alleges that on March 17, 2015, while he was in SHU, Deveney interfered with Vazquez-Castro's request for access to an administrative grievance form, known as a BP-8, which Vazquez-Castro wanted to use to complain about his placement in SHU. Vazquez-Castro specifically alleges that Deveney improperly required him to record the reasons he wanted to have the form in a “cop-out” form, before Vazquez-Castro would be allowed to have access to a BP-8 grievance form. Vasquez-Castro states that Deveney's actions in this regard were contrary to BOP regulations.

         In April 2015, after Vazquez-Castro had complained to Deveney's supervisors about the “hurdle” Deveney had placed in the way of his access to a BP-8 form, Deveney hand-delivered a BP-8 form to Vazquez-Castro. Vazquez-Castro filled out that form. Deveney returned prison officials' written response to it to Vazquez-Castro, in a manner contrary to BOP regulations, by handing it to plaintiff's cellmate and telling him that the response belonged to Vazquez-Castro.

         On July 29, 2015, Deveney charged Vazquez-Castro with the disciplinary offense of failing to report for a scheduled team meeting, in Incident Report No. 2743875. Vazquez-Castro asserts that although the charge was false, and supervisory BOP officials ultimately expunged the charge from his record in October 2015, the disciplinary panel, on which D. Shuler sat, found him guilty of the charge in July 2015 and sentenced him to a loss of visits and loss of commissary for 30 days. Vazquez- Castro asserts that he was not permitted to call witnesses or to have a staff representative at the hearing. Plaintiff further asserts that after he appealed the finding to FCI Berlin Warden Esker Tatum, Tatum did not adequately investigate the charge or respond to Vazquez-Castro's appeal.

         On March 1, 2016, Deveney inspected Vazquez-Castro's FCI Berlin cell and issued Incident Report No. 2821910, charging him with having an untidy assigned space. Vazquez-Castro asserts that although that incident report was also false, the disciplinary panel, including defendants Labrenz and Buesche, found him guilty and sentenced him to 30 days loss of email. Vazquez-Castro alleges that he was again denied an opportunity to call witnesses during that disciplinary hearing, and that FCI Warden Hazlewood failed to investigate or properly respond to his appeal.

         On June 6, 2016, Vazquez-Castro was ordered to prepare his belongings for a transfer to another facility, and then was sent to the FCI Berlin SHU. Vazquez-Castro asserts that another FCI Berlin inmate, Carlos Jaquez, was summoned for a transfer on the same date but was not similarly placed in SHU. A detention order issued by FCI Berlin Lt. McCoy, attached to the pleadings here, states that Vazquez-Castro was placed in SHU because he was under investigation for violating unspecified BOP regulations. Prison officials never told Vazquez-Castro what the investigation concerned while he remained in SHU.

         Shortly after his three-day stay in SHU, Vazquez-Castro was transferred to FCI Ray Brook. The reason given for the transfer, which Vazquez-Castro alleges Hazlewood, Camp Administrator Lejeune, and Case Manager Beagle authorized, was a need to increase the population at FCI Ray Brook. See Req. for Transfer/App. of Mgt. Variable, May 27, 2016 (Doc. No. 6-1, at 6). Vazquez-Castro takes issue with the legitimacy of that reason; in his view, FCI Berlin also needed more inmates at that time, as many FCI Berlin inmates held more than one prison job.

         Vazquez-Castro filed this action before the BOP Office of General Counsel had completed its review of Vazquez-Castro's administrative appeal of Incident Report No. 2821910. See Doc. No. 1. After that review was completed, but before this court finished its preliminary review of the pleadings here, Vasquez-Castro moved to amend the complaint to add new defendants and claims, see Doc. Nos. 4, 6, 7. This court has construed those complaint amendments (Doc. Nos. 4-1, 6-1, 7-1) and the factual allegations in the underlying motions (Doc. Nos. 4, 6, 7), as addenda to Vazquez-Castro's complaint (Doc. No. 1) in this case.

         Claims

         Vazquez-Castro asserts the following claims in this action:

         1. Defendant P. Deveney retaliated against Vazquez- Castro, for exercising his right to petition the government for a redress ...


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