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Hower v. Stewart

United States District Court, D. Maryland

September 14, 2018

MICHAEL DAVID HOWER, #13630040, Petitioner,
TIMOTHY S. STEWART, et al., Respondents.


          George L. Russell, III United States District Judge.

         THIS MATTER is before the Court on Defendants Timothy S. Stewart, T. Connor, Randy Crane, and Holler's Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 33).[1] Also pending before the Court are Plaintiff Michael David Hower's Motion for Summary Judgment (ECF No. 31), Motion to Add a Defendant (ECF No. 48), and Motion for Reconsideration of Court Error (ECF No. 51).[2] This Bivens[3] action arises out of federal Bureau of Prisons (“BOP”) restrictions placed on Hower's computer access and receipt of certain publications, as well as the monitoring of his mail and telephone communications. The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2016). For the reasons outlined below, the Court will grant Defendants' Motion and deny Hower's Motions.

         I. BACKGROUND[4]

         A. Factual Background

         Hower is a federal inmate incarcerated at the Federal Correctional Institution in Cumberland, Maryland (“FCI Cumberland”) in Cumberland, Maryland. (Pet. Writ Habeas Corpus [“Pet.”] at 1, ECF No. 1).[5] In March 2008, a grand jury charged Hower with violating: (1) 18 U.S.C. § 2251, which prohibits the sexual exploitation of children; and (2) 18 U.S.C. § 2252A, which prohibits certain activities relating to child pornography. United States v. Hower, No. 1:08-CR-84, 2015 WL 13547583, at *1 (W.D.Mich. May 22, 2015); (Defs.' Mot. Dismiss Summ. J. [“Defs.' Mot.”] Attach. A at 8, ECF No. 33-2). Specifically, Hower violated these statutes by: (1) enticing a girl between the ages of six and nine years old to engage in sexually explicit conduct for the purpose of producing 15 digital images using a digital camera and a computer; and (2) knowingly receiving child pornography that had been shipped through interstate or foreign commerce by computer. (Longacre Decl. ¶ 9, ECF No. 33-2).

         On December 1, 2009, Hower pleaded guilty to these charges in the United States District Court for the Western District of Michigan. Hower, 2015 WL 13547583, at *1. He was sentenced to 420 months of incarceration. Id.; (see also Pet. at 2; Defs.' Mot. Attach. A at 9, ECF No. 33-2).[6]

         Due to the nature of Hower's convictions, he is designated an “Adam Walsh Act” inmate. (Longacre Decl. ¶¶ 4-5; Defs.' Mot. Attach. B at 14, ECF No. 33-2). As a result, Hower is subject to BOP Program Statement 5394.01, Certification and Civil Commitment of Sexually Dangerous Persons.[7] (Longacre Decl. ¶¶ 4-5; see also Defs.' Mot. Attach. B at 11-12). Designation and Sentence Computation Center (“DSCC”) staff review available documentation for each inmate upon entry into the BOP to determine whether the inmate has a history of unlawful sexual conduct and is therefore covered under Program Statement 5394.01. (Defs.' Mot. Attach. B at 12). The information DSCC usually reviews includes the Presentence Investigation Report, Judgment and Commitment Order, and Statement of Reasons. (Id.). Inmates with a history of unlawful sexual conduct, receive the case management assignment “WA W CONV” (WALSH ACT HISTORY WITH CONVICTION) or “WA NO CONV” (WALSH ACT HISTORY-NO CONVICTION). (Id.). Hower is designated “WA W CONV.” (Defs.' Mot. Attach. C at 14, ECF No. 33-2).

         Under BOP Program Statement 4500.11, Adam Walsh Act designated inmates, such as Hower, are automatically placed on a restriction for TRULINCS access.[8] (Defs.' Mot. Attach. D at 17-18, ECF No. 33-2). The warden may lift the automatic restriction.[9](Id. at 17). Warden Stewart has not done so in Hower's case. (Longacre Decl. ¶ 6).

         Additionally, where a computer is used in the commission of the inmate's offense, FCI Cumberland has an Institutional Supplement, CUM 1237.13, which restricts the inmate's computer access. (Longacre Decl. ¶ 7; Defs.' Mot. Attach. E at 20; Pet. Ex. 1, ECF No. 1-1).

         As for the monitoring of communications generally, Special Investigative Services (“SIS”) staff determine whether an inmate has “required monitoring status, ” i.e., all of the inmate's communication is monitored, including mail and telephone communications (Longacre Decl. ¶ 8). Program Statement 1380.11, which is a restricted and not available for the public or inmates to view, [10] provides that sex offenders who “actively used communication devices to further their criminal or deviant behavior are placed on required[ ] monitoring status.” (Id.). Inmates are notified if they are on restricted monitoring. (Id.). Hower has been on required monitoring status since he entered BOP custody in 2010. (Id. ¶ 10).

         Hower challenges the restrictions on his email access under CUM 1237.13. (Pet. at 1). Hower “has TRULINCS access, but [his] computer ‘no' status prevents email access with the public.” (Suppl. at 5, ECF No. 4). He pleads that his lack of access to email hinders his communication with his attorney and access to legal services, religious services, and publications. (Pet. at 4; Addendum Cl. at 1-2, ECF No. 6). He alleges that two of his fellow inmates, Caudle, who was convicted of fraud, and Kerns, who was convicted of sex trafficking, which included posting ads on the internet for “sex for sale, ” are permitted computer access. (Pet. at 5-6; see also Suppl. at 4).

         Hower alleges that on June 23, 2017, FCI Cumberland mailroom staff rejected publications that he had ordered because they were sexually explicit. (Mot. Am. at 2, ECF No. 19). He states that the publications contained photographs of young Asian models in bathing suits and lingerie, who look younger than their age. (Id. at 2). He notes that the company that sells the publication certifies that the models are over the age of eighteen and he states that the photographs “do not portray actual or simulated sexually explicit conduct or activity.” (Id. at 3; see also Pl.'s Opp'n at 2, ECF No. 40).[11]

         Hower states that he learned on June 28, 2017, that BOP staff are monitoring all his telephone calls and mail beyond normal screening procedures due to the nature of his sexual offenses, rather than his actual conduct. (Mot. Am. at 1-2). He further alleges that unnamed BOP staff threatened retaliation against him for filing this lawsuit.[12] (Id. at 3-4).

         B. Procedural History

         On January 20, 2017, Hower filed his Complaint, as a Petition for Writ of Habeas Corpus, against Stewart challenging the BOP determination to deny him email access. (ECF No. 1). He later amended and supplemented the Complaint to add Defendants Conner, Crane, and Holler and to add claims concerning his telephone and mail surveillance and denial of photographs and publications.[13] (ECF Nos. 4, 11, 19). Hower brings claims under the Free Speech Clause of the First Amendment of the United States Constitution challenging the restrictions on his email access, the surveillance of his mail and telephone communications, the rejection of sexually explicit publications, and for retaliation against him for filing this lawsuit. (Pet. at 4; Suppl. at 4, ECF No. 4; Addendum, ECF No. 6; Am. Pet. at 1, ECF No. 11, Mot. Am. at 1-2). Hower also brings equal protection and substantive and procedural due process claims under the Fifth Amendment. (Pet. at 4). Hower requests an unspecified amount of monetary damages for his “actual loss” and for the “daily stress of waiting for staff retaliation which will come.” (Mot. Am. at 2).

         On October 20, 2017, Defendants filed their Motion to Dismiss or, in the Alternative, for Summary Judgment. (ECF No. 33). Hower filed an Opposition on November 1, 2017. (ECF No. 40). On November 13, 2017, Defendants filed a Reply. (ECF No. 42). Hower filed a Motion for Leave to File Surreply on December 22, 2017, (ECF No. 44), which the Court granted on January 19, 2018, (ECF No. 45).

         On October 6, 2017, before Defendants filed their Motion, Hower filed a Motion for Summary Judgment. (ECF No. 31). Then, on February 15, 2018, Hower filed a Motion to Add Defendant. (ECF No. 48). On March 14, 2018, Hower filed a Motion for Reconsideration of Court Error. (ECF No. 51). Hower's Motions are unopposed.


         A. Hower's Motions

         1. Motion for Summary Judgment

         Hower filed the Motion for Summary Judgment on October 6, 2017, before Defendants filed a responsive pleading. Hower's Motion for Summary Judgment, despite the caption assigned to it by its pro se author, is essentially a Motion opposing Defendants' Second Motion for an Extension of Time as a “stall tactic” and requests judgment in his favor on that ground. (Pl.'s Mot. Summ. J. at 2, ECF No. 31). Hower provides no grounds for summary judgment, and, in any event, the Motion was premature. Accordingly, the Court will deny Hower's Motion for Summary Judgment.

         2. Motion to Add Defendant

         In his Motion to Add a Defendant, filed almost five months after Defendants filed their Motion for Summary Judgment, Hower seeks to add Ian Conners, Administrator, National Inmate Appeals, as a Defendant. Hower alleges that Conners provided false testimony in a response to an appeal of one of Hower's Administrative Remedy Requests related to the decision to reject his publications as sexually explicit or containing nudity. (Mot. Add Def. at 1, 2, ECF No. 48; Defs.' Mot. at 2). Hower contends that Connor violated his First Amendment rights and “rights to a fair Administrative Remedy Appeal.” (Mot. Add Def. at 2).

         Rule 15(a) provides that a party may amend his pleading once as a matter of course within twenty-one days after service of a motion under Rule 12(b). Because Hower did not meet this deadline, the Court may permit him to add Connors as a Defendant if “justice so requires.” Fed.R.Civ.P. 15(a)(2). The Court should deny leave to amend when leave to amend would be futile. Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). Leave to amend would be futile when an amended complaint could not survive a motion to dismiss for failure to state a claim. Wootten v. Virginia, No. 6:14-CV-00013, 2015 WL 1943274, at *2 (W.D.Va. Apr. 29, 2015).

         “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint, ” not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)). A complaint fails to state a claim if it does not contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that is plausible on its face, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is not required to forecast evidence to prove the elements of the claim, the complaint must allege sufficient facts to establish each element. Goss v. Bank of Am., N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)), aff'd sub nom., Goss v. Bank of Am., NA, 546 Fed.Appx. 165 (4th Cir. 2013).

         Pro se pleadings, however, are liberally construed and held to a less stringent standard than pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); accord Brown v. N.C. Dep't of Corr., 612 F.3d 720, 722 (4th Cir. 2010).

         Here, Hower asserts, in a conclusory manner, that Connors “lied” in his response because he did not “personally review copies of the rejected publications” before responding to Hower's appeal as required by BOP policy. (Mot. Add Def. at 1). Hower further states that Connor was “lying” in the response “to cover for the defendants and ‘hide' Constitutional violations.” (Id. at 2). Besides failing to provide any factual matter to support these allegations, the Connors' November 19, 2017 response, attached to Hower's Motion, belies Hower's assertion. It states:

We have reviewed documentation relevant to your appeal and, based on the information gathered, concur with the manner in which the Warden and Regional Director addressed your concerns at the time of your Request for Administrative Remedy. It has been determined that the publication was rejected in accordance with Program Statement 5266.11, Incoming Publications.[14]

(Update at 3, ECF No. 48-2) (emphasis added). Hower also provides no facts to support his assertion that Conner lied to cover Defendants' alleged constitutional violations. Thus, the Court concludes that it would be futile to permit Hower to add Connors as a Defendant. Accordingly, the Court will deny Hower's Motion.

         3. Motion for Reconsideration

         Hower moves for reconsideration of the March 7, 2018 Order that denied his Motion for a Restraining Order. (ECF No. 51; see also ECF Nos. 20, 50).

         Rules 59(e) and 60(b) govern motions to reconsider final judgments. See Fayetteville Inv'rs, 936 F.2d at 1469. Rule 59(e) controls when a party files a motion to alter or amend within twenty-eight days of the final judgment. Bolden v. McCabe, Weisberg & Conway, LLC, No. DKC 13-1265, 2014 WL 994066, at *1 n.1 (D.Md. Mar. 13, 2014). If the Motion is filed later, Rule 60(b) controls. Id. Here, Hower filed his Motion on March 14, 2018. Accordingly, Rule 59(e) governs the Court's analysis.

         A district court may only alter or amend a final judgment under Rule 59(e) in three circumstances: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” United States ex rel. Carter v. Halliburton Co., 866 F.3d 199, 210 (4th Cir. 2017) (citing Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007)). A Rule 59(e) amendment is “an extraordinary remedy which should be used sparingly.” Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1, at 124 (2d ed. 1995)). Furthermore, “[a] motion for reconsideration is ‘not the proper place to relitigate a case after the court has ruled against a party, as mere disagreement with a court's rulings will not ...

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