Spencer v. Fed. Prison Camp Duluth

JOHN ANTHONY SPENCER, Plaintiff, v. FEDERAL PRISON CAMP DULUTH, MN; WARDEN, FEDERAL PRISON CAMP DULUTH, MN;CORRECTIONS OFFICER ANDERSON; CORRECTIONS OFFICER BAKER;CORRECTIONS OFFICER GRABDDL; CORRECTIONS OFFICER BRIAN H;UNKNOWN CORRECTIONS OFFICER WITH CORRECTIONS OFFICER BAKER ON 12-19-12;and MAIL ROOM STAFF OF DECEMBER 12, 2012; Defendants.

CIVIL NO. 13-177 (JNE/JSM)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

August 1, 2016

REPORT AND RECOMMENDATION

The above matter came before the undersigned on Defendants' Motion for Summary Judgment [Docket No. 140]; Plaintiff's Motion for Leave to Amend [Docket No. 154]; Plaintiff's Response and Cross-Motion for Summary Judgment [Docket Nos. 155, 155-1];¹ and Plaintiff's Motion for Sanctions [Docket No. 163]. These motions were referred to the undersigned United States Magistrate Judge for a Report andRecommendation by the District Court pursuant to 28 U.S.C. §636(b)(1)(B) and Local Rule 72.1(c).

I. BACKGROUND

A. Background

Plaintiff is a federal inmate in the custody of the United States Bureau of Prisons ("BOP"). Declaration of David Baker ("Baker Decl."), ¶¶ 3, 4 [Docket No. 144]. From November 8, 2011 to February 21, 2013, plaintiff was incarcerated at the Federal Prison Camp in Duluth, Minnesota ("FPC-Duluth"). Plaintiff is currently incarcerated at the Federal Correctional Institution in Sandstone, Minnesota ("FCI-Sandstone").

Plaintiff was convicted of mortgage fraud, bank fraud, and conspiracy to commit mortgage and bank fraud following a jury trial. United States v. Spencer, 10-cr-326 (DSD/FLN), Docket No. 91 (jury verdict). Plaintiff was sentenced to 125 months² imprisonment within the BOP's custody. Baker Decl., ¶ 3; Ex. A. The Eighth Circuit affirmed plaintiff's conviction and sentence. United States v. Spencer, 700 F.3d 317, 324 (8th Cir. 2012). Plaintiff applied for rehearing en banc, which was denied on December 13, 2012. Id. Plaintiff's deadline to petition for a writ of certiorari to the United States Supreme Court expired 90 days later, on or about March 13, 2013. Pursuant to S. Ct. R. 13(5), plaintiff had until March 3, 2013, to apply for a 60-day extension of time to file his petition for a writ of certiorari. Plaintiff did not apply for an extension, nor did he file a petition for a writ of certiorari.

On December 17, 2013, plaintiff filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2255, alleging prosecutorial misconduct during his trial, Brady violations, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. United States v. Spencer, Civ. No. 10-326(1), 2014 WL 3573600, at *1 (D. Minn. July 21, 2014). The District Court denied the petition and denied a certificate of appealability. Id. at *13. On February 11, 2015, the Eighth Circuit denied plaintiff's application for a certificate of appealability and dismissed his appeal. Declaration of Bahram Samie ("Samie Decl."), Ex. 6 (Eighth Circuit Court of Appeals Judgment) [Docket No. 151-6]. Plaintiff filed a petition for writ of certiorari to the United States Supreme Court regarding his habeas petition. The petition was summarily denied. See Spencer v. United States, 136 S. Ct. 1391 (2016).

Plaintiff remains in BOP custody and has a projected release date of June 27, 2020. Baker Decl., ¶ 4, Ex. B.

B. Amended Complaint³ and Supplement to Amended Complaint

Plaintiff sued "Warden FPC-Duluth," Corrections Officers Jon Anderson, David Baker, Daniel Gravdal,⁴ Brian Henrickson, "Unknown CO with CO Baker on 12-19-12," and "Mail Room Staff of Dec. 12, 2012, FPC Duluth et. al."⁵ in their personal capacities under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging that defendants conspired to violate his constitutional rights to due process, access to thecourts, and freedom from retaliation for exercising his right of access to the courts. Amended Complaint [Docket No. 26].

The Amended Complaint alleged as follows. On December 12, 2012, plaintiff was called to the mail room at FPC-Duluth and was served with a subpoena for a deposition in a civil case. Amended Complaint, ¶¶ 1-21. The process server told plaintiff and "BOP staff" that pursuant to Minn. Stat. § 357.22, he was required to deliver to plaintiff a check in the amount of $20.00 as the "requisite witness fee." Id., ¶ 7 (emphasis in original). There was some uncertainty as to whether plaintiff could accept the $20 witness fee, but nonetheless, plaintiff was "ordered" by BOP staff to accept service of the subpoena. Id., ¶¶ 9, 10. Plaintiff alleged that he told the process server and BOP staff that "without the requisite witness fees, and requisite compensation for time and expenses," he would not participate in a telephonic deposition. Id., ¶ 11. The process server told BOP staff that the fee was required as a necessary part of the subpoena. Id. Plaintiff was instructed by the BOP mail room staff that the issue of the check (i.e. whether plaintiff could keep the check) would have to be resolved and plaintiff should look for further instructions from his prison counselor, defendant Jon Anderson.⁶ Id., ¶ 14. Before leaving the mail room, plaintiff told staff that he did not know how the issue of the check would be resolved, but that under no circumstances would he participate in the deposition without the $20 witness fee. Id., ¶ 15.

Later that day, Anderson told plaintiff that he would be participating in the deposition on December 17, 2012, at "about" 8:00 a.m.; Anderson would call plaintiff tohis office at that time; and he would, "if he didn't forget," place plaintiff on the callout⁷ list. Id., ¶ 17. Plaintiff objected, stating that he would not participate in the deposition without obtaining the advice or assistance of counsel; without the witness fee, it would be impossible for him to contact an attorney, the attorneys who sought the deposition or the court because he was indigent; and because it appeared that the attorneys who issued the subpoena wanted to inquire on issues touching on his criminal case, he would not participate and would likely invoke Fifth Amendment rights. Id., ¶ 18. Anderson instructed plaintiff to contact the mail room staff regarding the witness fee check. Id., ¶ 19. That evening, plaintiff received a BOP notice of "Material Rejected and Returned," citing the prohibited "negotiable instrument" (i.e. the witness fee check). Id., ¶ 21. According to plaintiff, returning the check constituted failure of service. Id.

On December 14, 2012, plaintiff wrote a "cop-out" (an inmate request form)⁸ to "Warden or Admin." stating that forcing him to participate in the deposition without the witness fee violated his due process rights and his right to counsel. Id., ¶ 22. The same day, plaintiff wrote a second cop-out to "Baker⁹ or Admin," stating that he was indigent and could not buy a stamp to mail a letter to or call the attorney who served him with the subpoena to inform him he would not participate in the deposition. Id. Plaintiffasked for a stamp or phone call to call the lawyer who issued the subpoena to tell him that he had been denied the witness fee. Id. Plaintiff did not receive a response to either cop-out. Id., ¶ 23.

Plaintiff alleged that he went to Anderson's office at 6:45 a.m. on December 17, 2012, but Anderson was not there. Id., ¶ 24. Plaintiff then went to his assigned work area at the recreation center. Id., ¶ 25. He did not hear himself being paged before the announcement of "A.M. Census Clear."¹⁰ Id. Just after the census was cleared, plaintiff responded to the page to report to Anderson's office. Id., ¶ 26. Plaintiff went to Anderson's office, at which time Anderson reprimanded him for not appearing earlier and asked plaintiff where he had been. Id., ¶¶ 27, 28. Plaintiff told Anderson that he had been in his assigned work area in the recreation department. Id., ¶ 28. Anderson then ordered plaintiff to pick up the telephone and "do as instructed from the other end of the line," without asking plaintiff about his concerns or intentions about participating in the deposition. Id., ¶ 29. Plaintiff alleged that in response to Anderson's intimidation, he became silent during the attempted deposition, which angered Anderson. Id., ¶¶ 30-38. In response to his silence, the attorneys told plaintiff that they would "get Mr. Anderson back on the line," apparently to complain about plaintiff's silence. Id., ¶ 31. Anderson talked to the attorneys and then again ordered plaintiff to take the phone and participate in the deposition. Id., ¶ 32. Anderson continued to try to intimidate and coerce plaintiff into signing some documents that plaintiff had never seen before. Id., ¶ 34. Anderson told plaintiff he could not read the documents until he signed them. Id. This resulted in an argument between Anderson and plaintiff, in whichAnderson told plaintiff that it was in plaintiff's best interests to do what he was told, "as this was a 'direct order to sign the paperwork.'" Id., ¶ 35. Plaintiff refused to sign the documents, requested counsel, and indicated he would not continue with "this forced deposition." Id., ¶ 36. Anderson gathered up the documents placed before plaintiff and chastised him for not participating in the deposition, stating: "You are going to get a shot for this. "[Y]ou made me look bad and wasted my time and there's no getting away with that. I have some sympathy, but not for people like you." Id., ¶ 38.

At about 7:00 p.m. that evening, plaintiff was called to the "Lieutenant's" office and was given "an institutional 'shot'" for purportedly being late to a callout.¹¹ Id., ¶ 40. The next day, December 18, 2012, plaintiff alleged that as punishment, he was re-assigned to kitchen duty from his previous job in the recreation department. Id., ¶ 41. That afternoon, plaintiff approached Anderson and asked him about the job change. Id., ¶ 42. Anderson said that he changed plaintiff's job assignment in retaliation for plaintiff not participating in the...