Penn v. Conway et al, No. 2:2018cv00104 - Document 56 (N.D.W. Va. 2020)
Court Description: ORDER GRANTING DEFENDANTS 49 MOTION TO DISMISS OR FOR SUMMARY JUDGMENT. It is ORDERED that the plaintiffs Complaint [Doc. 1 be DISMISSED WITH PREJUDICE. This Court further DIRECTS the Clerk to enter judgment in favor of the defendants and to STRIKE this case from the active docket of this Court. Signed by District Judge John Preston Bailey on 3/23/20. (njz) copy mailed to pro se pla via cert. return rec't mail
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oper number of continuation pages with your requestlappeal” and “you may resubmit your appeal in the proper form within 15 days of the date of this rejection notice.” [Doc. 50-1 at 4, 19, 21-22]. Penn did not resubmit his 5 appeal. [Id. at 4]. Although he asserts “[m]y last remedy was never answered ... the court shall see all administrative Fl, Ri, and Al Remedys (sic) completed,” the evidence he cites relate only to BOP administrative steps prior to the appeal rejection. [Doc. 55 at 2]. Indeed, defendants’ claims are supported by the rejection notice plaintiff attached to his initial Complaint [Doc. i-i at 8]. There is no genuine dispute of material fact asto Penn’s failure to complete the administrative process available. Further, even if this Court were to find that Penn had exhausted his administrative remedies, dismissal of this case would be appropriate. First, as to Penn’s first claim, defendants correctly note that this Court has already recognized that a federal prisoner does not have a constitutional right to be free from false disciplinary reports. Evans v. Officer Cunningham, [Civ. A. No. 2:15-cv-60 Doc. 59 at 13], 2016 WL 3951157 (citing Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986)). Second, as to plaintiff’s claim against defendant Fowler, he has yet to be served and the Magistrate Judge already deemed it appropriate for him to be dismissed from this case. Finally, as to plaintiffs claim against defendant Meyer, defendants correctly note that as a United States Public Health Service employee, Meyer is immune from personal liability under a Bivens action. [Doc. 50 at 16], citing Hui v. Cataneda, 559 u.s. 799, 805-06. Accordingly, the defendants are entitled to judgment as a matter of law and their motion will be GRANTED. CONCLUSION For the reasons stated above, defendants’ Motion to Dismiss or For Summary Judgment [Doc. 49] is hereby GRANTED. Accordingly, it is ORDERED that the plaintiffs Complaint [Doc. 1] be DISMISSED WITH PREJUDICE. This Court further DIRECTS the 6 Clerk to enter judgment in favor of the defendants and to STRIKE this case from the active docket of this Court. It is so ORDERED. The Clerk is directed to transmit copies of this Order to all counsel of record herein and mail a copy to the pro se plaintiff. DATED: MarchS 2020. 7
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