Johnson-Bey v. Ray, 10th Cir. (2002)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
MAR 19 2002
PATRICK FISHER
Clerk
LIONEL JOHNSON-BEY,
Plaintiff-Appellant,
v.
M.E. RAY, Warden, USP Leavenworth;

E. PIERCE, Unit Manager, A-1, USP
Leavenworth; R. SWANSON, Counselor,
A-1 Unit, USP Leavenworth; J. TROTT,
A-1 Unit, Case Manager, USP
Leavenworth; (FNU) KENNY,
No. 01-3382
(D.C. No. 01-CV-3172-GTV)

(D. Kan.)
Defendants-Appellees.
ORDER AND JUDGMENT*

Before SEYMOUR, HENRY and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*
Plaintiff Lionel Johnson-Bey, a federal prisoner appearing pro se, appeals from the
district courts dismissal of his civil rights action brought pursuant to Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). We
exercise jurisdiction pursuant to 28 U.S.C. 1291, affirm in part, reverse in part, and
remand for further proceedings.
The facts alleged in plaintiffs complaint all occurred while plaintiff was housed at
the United States Penitentiary in Leavenworth, Kansas (USP-Leavenworth). In July
2000, plaintiff was allegedly ordered to share a cell with convicted World Trade Center
bomber Mahmud Abouhalima. After refusing to comply with the order, plaintiff was
placed in a special housing unit (SHU), a false report was allegedly filed against him
charging him with possession of a knife found in Abouhalimas cell, and false
information was allegedly provided to Abouhalima indicating that plaintiff had attempted
to set him up for a disciplinary violation. Plaintiff alleged that these actions were the
product of racial and religious discrimination on the part of several correctional officers
employed at USP-Leavenworth, all of whom were named as defendants in plaintiffs
complaint. Because the defendants actions allegedly made it unsafe for plaintiff to
remain at USP-Leavenworth, plaintiff requested relief in the form of a transfer to a
federal facility in Nebraska or Iowa. Plaintiff also requested $1,500 per day for the racial
and religious discrimination, and $1.8 million for the mental, emotional duresscaused to
him by the defendants conduct. Complaint at 6.
2
Subsequent to the filing of his complaint, plaintiff was transferred from USPLeavenworth to a federal correctional facility in Lompoc, California. Plaintiff thereafter
filed supplemental pleadings alleging that he was in danger at Lompoc and continued to
suffer mental distress because at least one of Abouhalimas co-defendants was housed
there. Plaintiff requested a transfer from Lompoc to facilities in Missouri, Illinois, or
Minnesota.
The district court dismissed plaintiffs complaint for failure to state a claim upon
which relief could be granted. In doing so, the district court concluded that plaintiffs
transfer from USP-Leavenworth to Lompoc rendered moot his request for injunctive
relief, and that, in any event, plaintiff had no protected right to be housed in or transferred
to any particular facility. The district court further concluded that plaintiffs request for
monetary damages for mental or emotional distress was defeated by his failure to allege
any prior showing of physical injury. 42 U.S.C. 1997e(e). The district court also
concluded that plaintiffs allegations of racial and religious discrimination were too vague
and conclusory to establish a claim of constitutional deprivation. Lastly, the district court
concluded that plaintiffs placement in restrictive confinement did not state a claim of
constitutional significance.
We agree with the district courts dismissal of plaintiffs request for injunctive
relief, i.e., his request to be transferred to another facility. As the district court correctly
noted, an inmate such as plaintiff has no justifiable expectation that he will be
3
incarcerated in any particular facility. Olim v. Wakinekona, 461 U.S. 238, 245 (1983);
see Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (noting there is no federal
constitutional right to incarceration in any particular prison). Further, while plaintiff has
expressed concerns about his safety due to the presence of certain inmates at Lompoc, he
has not alleged that federal correctional officials at Lompoc have failed to fulfill their
obligation to take reasonable measures to guarantee his safety. See Farmer v. Brennan,
511 U.S. 825, 833, 847 (1994) (affirming that prison officials have duty to protect
prisoners from violence by other prisoners); Barney v. Pulsipher, 143 F.3d 1299, 1310
(10th Cir. 1998) (same).
We further agree with the district court that plaintiff failed to state a claim upon
which relief could be granted arising out of his initial placement in SHU at USPLeavenworth. As noted, plaintiffs complaint alleged that he was placed in SHU for
failing to follow an order to share a cell with Abouhalima. We are unable to discern any
possible constitutional violation arising out of that situation. In particular, there is no
allegation that plaintiff was deprived of any procedural due process rights prior to his
placement in SHU.
Although it is a closer question, we also agree with the district courts dismissal of
plaintiffs claim that one or more officials at USP-Leavenworth filed a false disciplinary
report charging him with possession of a knife. Inmates such as plaintiff are entitled to be
free from arbitrary actions by prison officials. Protection from such arbitrary actions
4
generally comes in the form of procedural due process rights, e.g., prior written notice of
a violation, the right to present witnesses and evidence, a written statement of factfinding, and a decision by an impartial body. See McPherson v. McBride, 188 F.3d 784,
787 (7th Cir. 1999). Here, there is no assertion by plaintiff, and we are unwilling to
assume, that he was deprived of such procedural due process rights following the alleged
filing of the false disciplinary report. Thus, he has no viable due process claim. See id.
Finally, we agree with the district court that plaintiff failed to offer any substantiation for
his conclusory assertion that the filing of the report was racially or religiously motivated.
We conclude the district court erred in dismissing plaintiffs remaining claim, i.e.,
that one of the officials at USP-Leavenworth falsely informed Abouhalima that plaintiff
had attempted to set him up for a disciplinary violation (by apparently placing a knife in
Abouhalimas cell). While we agree with the district court that plaintiff failed to offer
any substantiation for his assertion that this act was racially or religiously motivated, we
nevertheless conclude that the act, if true, was sufficient to state a claim upon which relief
could be granted. In Benefield v. McDowall, 241 F.3d 1267, 1270-72 (10th Cir. 2001),
we held that an inmate had adequately alleged an Eighth Amendment violation when he
asserted that a correctional officer deliberately exposed him to the risk of harm at the
hands of other inmates by labeling him a snitch. The facts alleged by plaintiff in this
case are sufficiently similar in our view to warrant further proceedings. In particular, a
liberal construction of plaintiffs pleadings indicates that the officers alleged statements
5
to Abouhalima were intended to, and in fact did, increase the risk of physical danger to
plaintiff. The fact that plaintiff suffered no physical injury resulting from the officers
alleged action, though relevant to the issue of damages, see 42 U.S.C. 1997e(e), does
not require dismissal of the claim. See Searles v. Van Bebber, 251 F.3d 869, 876, 878
(10th Cir. 2001) (concluding that 1997e(e) limits an inmates ability to recover for
mental or emotional injuries, but does not bar recovery of nominal or punitive damages).
AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further
proceedings. Plaintiff is reminded of his obligation to continue making partial payments
until the entire balance of the appellate filing fee is paid.
Entered for the Court
Mary Beck Briscoe
Circuit Judge

Johnson-Bey v. Ray, 10th Cir. (2002)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

M.E. RAY, Warden, USP Leavenworth;

(D.C. No. 01-CV-3172-GTV)

ORDER AND JUDGMENT*

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