United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING RETALIATION CLAIM
JANE MAGNUS-STINSON, District Judge.
Presently pending before the Court is the Individual Defendants' Motion to Dismiss Claims, or in the Alternative, Motion for Summary Judgment. [Dkt. 47.] In an earlier entry, the Court partially granted the motion in favor of Defendants on one of the pending claims, arising from what the Court termed the "the cuff port incident." The Court found that Plaintiff Guillermo Rivera ("Mr. Rivera") failed to exhaust his administrative remedies with respect to that claim. [ See dkt. 62 (Entry Discussing Motion for Summary Judgment as to Claim Based on the Cuff Port Incident).]
In addition to the cuff port claim, Mr. Rivera also asserted a claim that he was retaliated against for grieving the cuff port incident and for complaining about it to the Federal Bureau of Investigation ("FBI") and the United States Attorney General. The Complaint states:
The plaintiff filed a complaint using the Bureau of Prison Administrative Remedy Procedure, which is the only recourse available to all inmates. My filing was rubber stamped at every level and the Bureau of Prison gave me written notice stating that the incident would be investigated. One year later, there was no such investigation and the matter was swept under the carpet and forgotten.
Because assault and battery is a criminal offense in every corner of the United States of America; the plaintiffs pursued further action by contacting the FBI, in Indianapolis, and Eric Holder, U.S. Attorney General, by regular mail marked legal mail. This was done in April 2010. Shortly after filing my letters the administration began a campaign of harassment techniques, sanctioned by Warden Marberry, and carried out by A.W. Church, in retaliation for contacting the FBI and U.S. Attorney General.
The Plaintiff has been placed in Special Housing [(the "SHU")] in retribution for nearly 2 years; I've been threaten (sic) with bodily harm and that they would put weapons in my personal property in order to charge me with possession; I've been searched repeatedly in public as a way to humiliate; at one point, I was groped/fondled, in front of many inmates, this was done to provoke me; when I filed against Mr. Church for groping me, Captain Joiner (sic), attempted to persuade me to drop my complaint, or else; this took place June, 2010, when I did not, the situation was turned against me, and I was placed in [the SHU]. As recently as May, 2011, I was packed in the SHU, 24 hour lock down, for an unrelated issue, while here, I've been held in four point restraint system/freezing room, for 17 hours: No water or toilet, no food, no clothing, totally Abu Grave (sic) treatment. This retaliation is condoned by the new Warden, Mr. Lockett, with no relief in sight.
[Dkt. 1 at 3.] After screening pursuant to 28 U.S.C. § 1915A, the retaliation claim was allowed to proceed against Defendants Marberry, Church, Joyner, and Lockett.
In the instant motion, all Defendants assert that Mr. Rivera's Complaint fails to state a cognizable claim for retaliation. Warden Marberry and Warden Lockett also move for summary judgment, asserting that Mr. Rivera cannot and has not established that they have the requisite level of personal involvement to subject them to liability in this Bivens claim. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 38 (1971). The Court will address the arguments in turn.
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
A. Standard of Review
In a very recent decision, the Seventh Circuit discussed anew the standard of review on a motion to dismiss ...