United States District Court, D. Maryland
L. Russell, III United States District Judge.
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.
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). This
Bivens 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
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). 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).
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).
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. (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).
BOP Program Statement 4500.11, Adam Walsh Act designated
inmates, such as Hower, are automatically placed on a
restriction for TRULINCS access. (Defs.' Mot. Attach. D
at 17-18, ECF No. 33-2). The warden may lift the automatic
restriction.(Id. at 17). Warden Stewart has
not done so in Hower's case. (Longacre Decl. ¶ 6).
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).
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,  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. ¶
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
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.
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. (Id. at 3-4).
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. (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).
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).
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.
Motion for Summary Judgment
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.
Motion to Add Defendant
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).
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).
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).
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).
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.
(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.
Motion for Reconsideration
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).
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.
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 ...