Ajaj v. United States (479 F. Supp. 2d 501, 2007)

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

CURRIE, District Judge.

This matter is before the court on Plaintiffs pro se complaint arising out of his incarceration at the Federal Correctional Institution in Edgefield, South Carolina (“FCI-Edgefield”). While not so limited, his claims relate primarily to his confinement in the Special Housing Unit (“SHU”) from August 31, 2001 through September 4, 2001, and again from September 11, 2001 until his transfer to FCI-Florence in August 2002. FCI-Florence is located in Colorado.

In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d), DSC, this matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial proceedings and a Report and Recommendation on any dispositive motions. On September 7, 2006, Magistrate Judge Marchant issued a Report and Recommendation (“Report”) addressing various dispositive motions including motions to dismiss and for summary judgment. The Report recommended that Plaintiffs claims relating to his confinement in the FCI-Edgefield SHU from August 31, 2001 through September 4, 2001, be allowed to proceed to the extent they were pursued against Defendants Paul and Berry. The Report recommended that the motions to dismiss or for summary judgment be granted to the extent that claim was pursued against Defendant Allen and as to all Defendants as to all other claims. The Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections to the Report and Recommendation and the serious consequences if he failed to do so.

Defendants Paul and Berry filed objections to the Report, asserting that the claims against them should not be allowed to proceed. These objections are based, in part, on their assertion of a qualified immunity defense.

Plaintiff filed objections to the remaining recommendations. These objections are supported by extensive materials which the court allowed to be filed subject to later determination as to whether they should be considered. See Dkt No. 395. The court also afforded Plaintiff significantly more than the normal time to file his objections and supporting materials and made other accommodations relating to the service of documents to insure that Plaintiff was afforded the maximum opportunity to fully present his objections. See Dkt No. 393 (granting Plaintiff additional sixty days to file objections); Dkt No. 395 (quoted in n. 2 above — relieving Plaintiff from any obligation to serve Defendants with copies of his submissions in this action).

STANDARD OF REVIEW

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of any portion of the Report and Recommendation of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).

After reviewing the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, the objections of the parties, and the voluminous materials submitted by Plaintiff along with his objections, the court agrees with the conclusions of the Magistrate Judge as to all recommendations and, with one exception, for the reasons stated. As to some recommendations, the court writes further to address Plaintiffs recent evi-dentiary submissions. As to Plaintiffs tenth objection, the court declines to adopt one basis for the recommended ruling, but otherwise adopts the Magistrate Judge’s reasoning and ultimate recommendation. Accordingly, the court adopts and incorporates the Report and Recommendation by reference in this Order except to the extent indicated below.

DISCUSSION

I. PAUL AND BERRY OBJECTIONS

Defendants Paul and Berry raise two objections. Their first objection challenges the Magistrate Judge’s failure to recommend that they be granted summary judgment based on their assertion of a qualified immunity defense. Their second objection challenges consideration of an equal protection basis for Plaintiffs claim given his failure to expressly assert such a theory. The court finds both objections to be without merit.

Allegations at Issue. The allegations relevant to this claim are described by Defendant Berry in his objections as follows:

Taking the facts most favorably to Plaintiff, Defendant Paul called the officer on duty in Plaintiffs housing unit pretending to be of Middle Eastern descent and seeking information about Plaintiff. Defendant Berry was present when Defendant Paul made the phone call. Plaintiffs name was arbitrarily chosen from the front page of an inmate roster. After the call, the unit officer reported the event to a supervisor. At that time, Defendants Paul and Berry “panicked,” and failed to immediately report the incident to the shift supervisor.

* * *

The record clearly reflects that Defendants Paul and Berry’s sole motivation behind the telephone call was their desire to play a joke on a particular, fellow co-worker. The nature of the prank was that Defendant Paul’s voice would be disguised to be that of a Middle Eastern dialect so that they could get a reaction out of their co-worker. The subsequent actions by the prison employees were primarily impulsive and reactionary— the co-worker became anxious and notified his supervisor while both Defendants Paul and Berry got scared and failed to seek out their supervisors to own up to their involvement.

... Defendant Berry concedes that his involvement or participation in the decision to utilize a dialect of a particular foreign-based origin or ethnicity was plainly immature and inappropriate. However, the phone call, while indeed insensitive toward Middle Eastern sensibilities in a universal sense, was not intended or designed to personally discriminate against Plaintiff, rather, to play a prank intended to trick or embarrass a targeted co-worker in some fashion.

Dkt No. 394 at 1-2.

Except as to the motivation and the foreseeability of the prison official’s response to the call, this description of events is a fairly accurate statement of the facts taken in the light most favorable to Plaintiff. The evidence regarding motivation is discussed below under “Equal Protection Theory.” As to the foreseeability of the response, it is important to add that the call was made either on or to a secure line, thus causing prison officials to believe that their system or security had been breached. The reaction, placing Plaintiff in the SHU for several days until the event could be investigated, does not strike this court as unforeseeable given the nature of the call and the offense for which Plaintiff had been convicted (involvement in the first World Trade Center bombing).

Qualified Immunity. In support of their qualified immunity defense, Defendants characterize their actions as being a practical joke gone awry. Thus, they do not suggest that they were engaged in any action falling within the scope of their official duties or that any reasonable prison guards in their position would have believed that the conduct was within the scope of their authority. This, alone, precludes summary judgment in their favor on the qualified immunity defense, if not precluding the defense altogether. See In re Allen, 106 F.3d 582 (4th Cir.1997).

As the Fourth Circuit explained in In re Allen:

Before permitting an official to claim qualified immunity a court must determine that the official’s acts were not clearly established to be beyond the scope of his authority. The defendant official bears the burden of demonstrating that the conduct of which the plaintiff complains “falls within the scope of the defendant’s duties.” Shechter v. Comptroller of New York, 79 F.3d 265, 268 (2d Cir.1996); Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988) (holding that for immunity an official “must first prove that ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ ”) (quoting Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983)); see also Mackey v. Dyke, 29 F.3d 1086, 1095 (6th Cir.1994) (finding that “defendants bear the initial burden ... [of] showing] they were acting within their discretionary authority at the time in question”); Gray v. Bell, 712 F.2d 490, 502 n. 36 (D.C.Cir.1983) (“It is clear that the scope of authority requirement is a prerequisite to any application of official immunity whatever the level of protection asserted or the nature of the claim involved.”); Barker v. Norman, 651 F.2d 1107, 1124-25 (5th Cir.1981) (to claim qualified immunity, a defendant official must show that “the complained-of actions were undertaken pursuant to the performance of his duties and within the scope of his discretionary authority”). But, in order to ensure that public officials are adequately protected from liability, an official’s conduct falls within his authority unless a reasonable official in the defendant’s position would have known that the conduct was clearly established to be beyond the scope of that authority.

In re Allen, 106 F.3d at 594.

As noted in Leverette v. Bell, 247 F.3d 160, 164-65 (4th Cir.2001), an official will not be found to have committed an action which was “clearly established to be beyond the scope of [his or her] authority” simply because the action was improper or illegal. Instead, the court considers “whether a reasonable official in [the same] position should have known that the conduct was clearly established to be beyond the scope of her authority.” Id. (finding search which required plaintiff to “strip, squat and cough” fell within this standard in part because it did not directly contravene policy prohibiting body cavity searches).

In the present case, Berry and Paul do not suggest that any reasonable officer would have believed that the relevant actions were within the scope of his or her authority. Under their characterization of events, the actions were merely a prank. There is, moreover, no suggestion that the call served any work-related purpose. Thus, they do not satisfy the threshold requirement for application of the qualified immunity defense, even though their actions may have been enabled by their role as prison guards. See generally, Rossig-nol v. Voorhaar, 321 F.Supp.2d 642 (D.Md. 2004) (finding qualified immunity unavailable to law enforcement officers who allegedly interfered with First Amendment rights of newspaper publisher while off-duty even though the actions were sufficiently connected to their role as law enforcement officers to support a finding that they acted under color of law).

Even if these Defendants could satisfy the threshold requirement discussed above, they would not be entitled to summary judgment on their qualified immunity defense. This is because their qualified immunity defense rests on a characterization of the events which is not the only reasonable interpretation of them.

Specifically, Paul and Berry assert that Plaintiff, a person of Middle Eastern descent, was merely the subject of a joke, while the “target” was a fellow officer they intended to trick or embarrass. The essence of the “joke” was a call to the targeted officer using a Middle Eastern accent and inquiring about the subject inmate (Plaintiff), who happened also to be of Middle Eastern descent. They further assert that they did not intend for the inmate selected as the subject to suffer any consequence as a result of the joke, and that any injury he did suffer resulted only because they panicked after realizing their joke had gone awry and, thereafter, failed to take action to prevent harm.

The evidence, however, allows for a different interpretation of the facts. First, the accent used in the call was Middle Eastern. Plaintiffs name also suggests he is of Middle Eastern origin. When combined, these two facts allow for a reasonable inference that Plaintiffs name was not selected arbitrarily, as Paul and Berry claim, but based on his apparent ethnicity or national origin. There is also evidence that Plaintiffs ethnicity and origin were well known within the prison, further supporting this inference. Finally, at least one of these two Defendants allegedly had made disparaging comments to Plaintiff prior to this incident which related to his national origin or ethnicity (calling him a “towel head”). Plaintiff also claims that such comments were combined with excessive and unnecessary searches from this guard which, in combination, may suggest an ethnicity or national origin-based animosity predating the August incident. In light of these combined facts, a jury could reasonably conclude that Plaintiff was, in fact, selected either as the target, or at least the “subject,” of the call precisely because of his known ethnicity or national origin.

As noted in the Report, it has long been settled that “[prisoners are protected under the Equal Protection Clause ... from invidious discrimination.” Report at 57 (citing Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). These rights, extend, for example, to claims based on denial of a right to participate in specific prison work assignments based on race. LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991) (holding that an inmate “has no right to any particular prison job, but prison officials cannot discriminate against him on the basis of his race in work assignments”).

In a recent decision, a district court relied on LaBounty in concluding: first, that an inmate stated a claim for punitive denial of work assignments based on race and religion; and, second, that the relevant right was clearly established prior to the events in question which occurred in September 2002. Bussey v. Phillips, 419 F.Supp.2d 569, 581 & 588 (S.D.N.Y.2006). Because the latter finding was based on LaBounty, a 1991 decision, it follows that the right was also established, at least in the Second Circuit, before the events at issue in this action which occurred in August 2001.

As summarized in Bussey,

The Equal Protection Clause directs [governmental] actors to treat similarly situated people alike. Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir.1995)[.] ... Specifically, the Equal Protection Clause “bars the government from selective adverse treatment of individuals compared with other similarly situated individuals if ‘such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.;’ ” Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir.2005) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir.1980)). To prove an equal protection violation, a plaintiff must demonstrate intentional or purposeful discrimination, directed at an identifiable or suspect class. See Giano, 54 F.3d at 1057.

Bussey, 419 F.Supp.2d at 581.

The question, therefore, becomes whether selecting Plaintiff as the target or subject of the call constitutes “invidious discrimination,” similar to the work assignment discrimination referenced above. When all of the evidence is considered in the light most favorable to Plaintiff, the court believes that it does because the evidence allows for a reasonable inference that Plaintiff was selected as the target rather than the subject of the claimed “joke.” Even if only the subject, the evidence allows a reasonable inference that he was selected because of his ethnicity or national origin and that at least one of the two guards involved had previously treated Plaintiff in a manner suggesting an ethnicity or origin-based animus. It is, finally, reasonable to conclude that the guards were aware that the call would likely have adverse consequences for Plaintiff.

Equal Protection Theory. These Defendants’ second objection rests on the argument that the Magistrate Judge erred by considering a legal basis for relief (allegations of an equal protection violation) not expressly set forth in the complaint. In light of the liberal rules applied to pro se complaints, the court rejects this argument.

II. PLAINTIFF’S OBJECTIONS

Plaintiff has asserted thirteen separate objections in his 109 page objection memorandum. See Dkt Nos. 407 & 408. In addition, he has filed over one thousand pages of supporting materials which include but are not limited to: responses to discovery requests; affidavits or declarations by Plaintiff and others; excerpts from Plaintiffs deposition; documentary evidence of Plaintiffs administrative complaints; copies of Bureau of Prisons policies and related regulations; and case law reprints. See Dkt No. 409 at 2-6 (indexing the 147 exhibits); Dkt Nos. 409^45 (exhibits). While some of the documents submitted as exhibits are self-authenticating, Plaintiff has not offered the support for their introduction required by the docket text order reflected at Dkt No. 395 (quoted above at n. 2). Thus, they are not properly before the court. The court does not, however, rely on this inadequacy in reaching the result set forth in the remainder of this order as it concludes that the proffered evidence is insufficient to present a genuine issue of material fact even if properly before the court.

The court does, however, note that much of what is offered adds little to the eviden-tiary record. For example, many of the documents are duplicative of each other or material already in the record, or are copies of case law, rather than evidence.

Other submissions are of questionable evidentiary value and, in any event, add little to the factual record. This is the case as to two lengthy sets of answers to written interrogatories given by two federal inmates: Robert W. Best and Carl E. Hopkins. See Dkt No. 410 at 8-42 (Best responses); & Dkt No. 410 at 44-60 (Hopkins responses, partial) & Dkt No. 411 at 1-27 (Hopkins responses, continued). These interrogatory responses are signed under penalty of perjury, and are presented as “true and correct to the best information, knowledge, memory, and belief’ of the respondent. Dkt No. 410 at 42; Dkt No. 411 at 27. They do not, however, purport to be based on first-hand knowledge. Moreover, many of the matters to which they refer (conditions in Plaintiffs isolation cell) would not likely be matters as to which other inmates would have firsthand knowledge.

Even if accepted as a prediction of admissible evidence, these responses add little to the relevant record because much of what they contain relates to matters which are not in dispute (ie., when Plaintiff was placed in the SHU, how he was viewed by other inmates, and the basic limitations placed on inmates in the SHU), or merely duplicates Plaintiffs own statements of fact, which have been accepted as true for purposes of the present motion. Moreover, as with many of Plaintiffs assertions of fact, the statements contained in these declarations suffer from a lack of adequate specificity to present a genuine issue of material fact. See, e.g., Best response to interrogatory No. 115 (Dkt 410 at 38) (responding to inquiry whether he ever complained to prison officials “about the high level of noise in the SHU or other conditions of confinement” as follows: ‘Tes. I was told I needed to stay out of SHU if I didn’t like the conditions.”).

Finally, the affirmative responses in the declarations are, in several critical instances, contrary to Plaintiffs deposition testimony. They cannot, therefore, be considered for the purpose of contradicting Plaintiffs own statements of fact as to matters which he would personally have been in the best position to observe. Compare, e.g., Best response to interrogatory 62 (Dkt 410 at 22) (responding “yes” to inquiry whether it “[i]s true that on October 9, 2001, Ajaj was forced to sleep and live in dry cell with walls and bed smeared with human feces”) with Ajaj deposition at 149-50 (Dkt No. 418 at 28-29) (responding to inquiry relating to his “feces” allegations that it was “not [a] large amount, you know, it’s just in — in the edges of the bed, the food slot, certain areas .... corners of the windows” and conceding that any feces that had been left behind was a result of inmates doing an inadequate job of cleaning when they had been required to clean up after themselves — Plaintiffs basis for concluding the limited amount of substance he found was feces is not explained).

First Objection. In his first objection, Plaintiff argues that the Magistrate Judge failed to afford the proper degree of deference to Plaintiffs submissions, given the liberal standards applied to pro se actions. He further argues that the Report is contrary to an earlier Report in which the Magistrate Judge recommended denial of a motion to dismiss (or denial without prejudice of an early summary judgment motion) based on application of a deferential standard.

This argument misapprehends the critical distinction between a motion to dismiss, where all allegations of fact are accepted as true, and a motion for summary judgment, where the record evidence is taken in the light most favorable to Plaintiff. Having fully reviewed the Report and record evidence as of the time of issuance of the Report, the court concludes that the Magistrate Judge properly applied the relevant standard.

Further, as discussed below, the court reaches the same result even if all subsequently submitted materials are considered. This conclusion makes it unnecessary to decide whether the materials subsequently submitted should be accepted as part of the record.

Second Objection. In his second objection, Plaintiff argues that the Magistrate Judge failed to properly consider the evidence that Plaintiff was exposed to a constant high noise level while in the SHU and that this led to chronic sleep deprivation, thus supporting either a constitutional or negligence (Federal Tort Claim Act) claim. The undersigned disagrees.

Plaintiffs evidence relating to the noise level relates not to any artificially created noise level, but to the banging of bars, loud noises made by inmates, and late night conversations between prisoners. See Dkt No. 409 at 64-71 (Plaintiff depos. at 29-36); Dkt No. 411 at 20-21 (quoted below). While Plaintiffs evidence is sufficient to suggest that the noise level was unpleasant and annoying, it is not sufficient to establish either a constitutional or negligence claim.

This is evidenced, in part, by Plaintiffs contemporaneous complaint seeking an administrative remedy for the noise problems in which Plaintiff stated:

I respectfully request[ ] that the administration increase programs; activities and provide reading materials to help the inmates to stay busy in positive activities instead of banging and screaming all night. Also I request that the administration consider allowing inmates at SHU to have radios. This will help decrease the high level of noise.

Dkt No. 411 at 20-21. See also Dkt No. 409 at 66 (Plaintiff depos. at 31 — stating that he also sought removal of the mentally ill inmates from the SHU as a means of reducing the noise level).

The administration’s response acknowledged that “the noise level in SHU can, at times, be higher than in the general population,” but noted no other complaints had been received. Dkt No. 411 at 22. It further explained that reading materials and limited programs were available (the latter being limited due to “the violent and disruptive nature of inmates housed in SHU”), and indicated that staff would “be instructed to monitor the noise level ... to assess whether or not it requires staff intervention.” Id. Plaintiffs request for a “radio to offset the noise level” was denied because “local policy prohibits radios in SHU for security reasons.” Id.

Nothing in the Plaintiffs evidence as to the noise level suggests that Plaintiff was subjected to an “objectively ‘sufficiently serious’ ” condition or that a named Defendant faded to take action to correct such a condition with a “sufficiently culpable state of mind.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir.1995). Neither is there any evidence to contradict Defendants’ evidence that the actual noise level was tested and found to be within allowable tolerances.

Moreover, Plaintiffs requested forms of relief do not support an inference that the noise level was actually excessive and harmful, as opposed to merely being annoying and unpleasant. See generally Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir.1994) (“Subjecting a prisoner to a few hours of periodic loud noises that merely annoy, rather than injure the prisoner does not demonstrate a disregard for the prisoner’s welfare.”). Most particularly, his request for a radio, not only for himself but for others, indicates more of a desire to mask annoying noises (as his request was interpreted by the administration), rather than to reduce an unhealthy noise level.

Having considered the Plaintiffs objections and all additional evidence which he has submitted, the court rejects this objection and adopts the rationale and recommendation of the Report as to the noise-related allegations.

Third through Eighth Objections. The court has carefully reviewed Plaintiffs third through eighth objections which relate to his allegations of denial of dental care, failure to accommodate and protect religious rights, inadequate clothing and exposure to the cold, unhygienic conditions, excessive force and denial of access to the courts. The court finds each of these objections to be without merit, even after consideration of the additional evi-dentiary submissions. The court, therefore, adopts the rationale and recommendation of the Report as to each of these sets of allegations.

The court further notes that a number of the allegations contained within these objections are belied by Plaintiffs recently submitted evidence. For example, Plaintiff continues to assert that he was “forced to live in a feces-covered cell that was infested with ants.” Dkt No. 407 at 35 (Sixth Objection). The assertions relating to feces far overstate Plaintiffs own testimony that he found feces on the edges of the bed and corners of the windows, and that this resulted from inadequate earlier cleaning by inmates. See Plaintiff depos. at 149-50 (Dkt No. 418 at 28-29) (quoted above at 12). Such testimony is inconsistent with either the assertion that the cell was “covered” in feces, or that any Defendant intentionally placed Plaintiff in a “feces-covered cell.”

Similarly, Plaintiffs allegations relating to an ant infestation are inconsistent with his deposition testimony regarding how he came to be bitten. His claims that one or more Defendants were consciously indifferent to his serious medical needs during the same period are, likewise, belied by the records which establish that Plaintiff at times received medical attention when he requested it, and at other times refused medical evaluation or treatment offered by prison staff. See Dkt No. 416 at 86 & 87 (noting Plaintiffs refusal to be evaluated by a physician’s assistant on October 10, 2001 and a refusal to be weighed on October 11, 2001); Dkt No. 419 at 8 (indicating Plaintiff given medication for back pain twice on October 7, 2001). See also Dkt No. 419 at 40-41 (Plaintiffs January 10, 2002 Request to Staff acknowledging his refusal to receive medical care from Physician’s Assistant Lamb). The hunger strike, apparently coupled with the refusal to be evaluated in his cell, led to a forced move for medical evaluation. See Dkt No. 418 at 10.

Plaintiff also complains that he was denied a mattress while in the dry cell, but conceded in his deposition that he was allowed the mattress between the hours of 10 p.m. and 6 a.m. Plaintiff depos. at 154 (Dkt No. 416 at 78). Similarly, he alleges that he was denied blankets but, in his deposition, conceded that he did not recall if he got the blankets back after they were taken. Id. See also Plaintiff depos. at 153 (Dkt No. 418 at 32) (conceding that a complaint relating to blankets involved a lieutenant taking “some” blankets from Plaintiff when he had more than one).

Ninth Objection. Plaintiffs ninth objection relates to the recommendation that summary judgment be granted as to any claim against Defendant Allen relating to the “prank” call by Paul and Berry. This objection rests on Plaintiffs allegations that Allen failed to adequately respond to Plaintiffs prior complaints that Berry was singling Plaintiff out for harsher treatment in the form of overly frequent and zealous searches (no specifics are given other than that Plaintiff felt that Berry was “trying to search my own bones”) and made comments relating to Plaintiffs “case” and “nationalities.” Plaintiff depos. at 96 (Dkt No. 422 at 103). See also Plaintiff depos. at 98-100 (Dkt No. 422 at 105-07) (stating Berry called him a “terrorist” and “towel head” in front of other inmates). The evidence of prior complaints to Allen consists of Plaintiffs assertion that, while in the lunch line, he advised Allen that Berry was singling him out for searches and that Alen promised to “take care of it.” Plaintiff depos. at 119-23 (Dkt No. 422 at 124-28).

Accepting these facts as true, and assuming Alen took no corrective action despite promising to do so, there remains insufficient evidence to tie Alen to the alleged equal protection violation, whether through a negligence or other theory. Most critically, the evidence would not support a jury finding that Mien’s failure (if any) to correct Berry’s earlier taunts and excessive searches was legally causative of Berry and Paul’s decision to engage in the distinctly different behavior which led to Plaintiffs first placement in the SHU. To the extent any connection might be made, it could only be under a negligence theory which cannot stand for the reasons set forth in the Report. See Report at 62 (addressing FTCA prohibition on any award of damages “for mental or emotional injury suffered while in custody without a prior showing of physical injury”).

The court, therefore, finds Plaintiffs ninth objection to be without merit and adopts the reasoning and recommendation of the Report as to these claims.

Tenth Objection. In his tenth objection, Plaintiff asserts that the Magistrate Judge erred by failing to review the evidence relating to Plaintiffs “solitary confinement” claim (for the period beginning September 11, 2001). The undersigned agrees with the Magistrate Judge’s conclusion as to this claim and part, but not all, of his analysis.

The court disagrees with the Magistrate Judge’s analysis only to the extent it rested on an alternative ground that the claim addressed by the tenth objection was, necessarily, foreclosed by the prior decision in Ajaj v. Smith, C/A 0:02-2417 (“Ajaj I”). See Dkt No. 389 at 52-53. In reviewing this court’s decision in Ajaj I, the Fourth Circuit held that the action (which challenged Plaintiffs treatment at FCI-Edge-field, including his placement in the SHU) was properly construed as a claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Ajaj, 108 Fed.Appx. 743 (4th Cir.2004). It further held that the claim was mooted by Plaintiffs transfer to FCI-Florence because Plaintiff had only sought equitable relief. Given the modified basis on which the Fourth Circuit affirmed the earlier decision of this court, that earlier decision would not be dispositive of Plaintiffs present claim for damages. This conclusion does not, however, cast any doubt on the first basis for summary judgment on this claim addressed in the Report which is adopted by this court.

Plaintiff also asserts that the United States Supreme Court’s decision in Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), requires a different result. In Wilkinson, the Court found that inmates did have a liberty interest in avoiding assignment to a state’s supermax prison. In reaching this conclusion, the court carefully distinguished the supermax facilities from normal segregation units on three grounds. First, inmates in the supermax facility were “deprived of almost any environmental or sensory stimuli and of almost all human contact.” 545 U.S. at 214, 125 S.Ct. 2384. Second, they were assigned for “an indefinite period of time, limited only by [the] inmate’s sentence.” Id. Third, once assigned to supermax “[i]nmates otherwise eligible for parole lose their eligibility while incarcerated” at the facility. Id. at 215, 125 S.Ct. 2384. After noting other onerous conditions of confinement, including that the cells were lighted 24 hours per day, the court stated: “While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context.” Id. at 224, 125 S.Ct. 2384.

While the conditions of Plaintiffs confinement in the SHU at FCI-Edgefield were more restrictive than those applied to inmates in the general population, they were not nearly so restrictive and atypical as those at issue in Wilkinson. The court, therefore, agrees with the Magistrate Judge that Plaintiff did not have a liberty interest in remaining out of the SHU, even if Wilkinson is considered for purposes of addressing this action for damages.

For the reasons set forth above, the court adopts the recommendation of the Report that Defendants be granted summary judgment as to Plaintiffs claim that he was improperly transferred to the SHU on September 11, 2001 and held there until his transfer to FCI-Florence. The court rests this determination on the first rationale set forth in the Report as further addressed above.

Eleventh and Twelfth Objections. Plaintiffs eleventh and twelfth objections are without merit.

Thirteenth Objection. In his thirteenth objection, Plaintiff assets that he has been unfairly disadvantaged in the presentation of his case. The undersigned disagrees. Plaintiff has been afforded numerous extensions and other accommodations to allow him to adequately prepare and present his case. The numerous exhibits proffered in support of these objections demonstrate the adequacy of those accommodations.

CONCLUSION

For the reasons set forth above, the court adopts the Report and Recommendation of the Magistrate Judge, based on the analysis stated therein, with the one limited exception set forth above and as supplemented by this order. Summary judgment shall, therefore, be entered for all Defendants on all claims with the exception of an equal protection-based Bivens claim asserted against Defendants Paul and Berry relating to the telephone call leading to Plaintiffs August 2001 placement in the SHU.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

MARCHANT, United States Magistrate Judge.

This action has been filed by the Plaintiff, pro se, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging violations of his constitutional rights, as well as pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, et. seq. Plaintiffs original Complaint filed December 16, 2003 was amended pursuant to a supplement filed July 15, 2005. See Order filed November 4, 2005 [setting forth which claims contained in Plaintiffs supplemental Complaint are properly before this Court].

The Defendants Hawk and Cooksey filed a motion to dismiss on December 28, 2005. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on January 3, 2006, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, these Defendants’ motion may be granted.

On February 1, 2006, the Defendant Paul filed a separate motion for summary judgment, following which a second Rose-boro order was issued on February 13, 2006. Along with numerous requests for extensions of time, on March 10, 2006 Plaintiff filed motions and declarations to deny Paul’s motion for summary judgment and Hawk and Cooksey’s motion to dismiss. Thereafter the Defendants (with the exception of the Defendants Paul and Berry) filed a “supplement” to their original motion for summary judgment, which had been filed on May 24, 2005 (that motion had been stayed pending completion of discovery by order of the Court filed June 30, 2005). The Defendant Berry then filed a separate motion for summary judgment on March 24, 2006. A third Roseboro order was issued by the Court on March 27, 2006, and Plaintiff filed “motions” to deny these summary judgment motions on April 3, 2006.

Plaintiff has also filed numerous motions to stay and/or for extensions of time, and on May 30, 2006 Plaintiff was granted until July 31, 2006 to file any additional responses he wished to file to the outstanding motions to dismiss or for summary judgment. See Order filed May 30, 2006 (text order). Plaintiff thereafter filed a response in opposition to the Defendants’ Hawk and Cooksey’s motion to dismiss on June 2, 2006. No additional filings purporting to be responses to the Defendants’ dispositive motions have been received. Defendants’ motions are now before this Court for disposition.

Background and Evidence

Plaintiff alleges in his verified Complaint that in 2001, while he was incarcerated at the Federal Correctional Institution in Edgefield, South Carolina, he was unlawfully placed in solitary confinement. Plaintiff further alleges that during the time of this confinement, August 31, 2001 through September 4, 2001, he was “subjected to constant taunts, harassment, physical and mental pain as a result of the harassment and my unlawful [ ] placement in solitary confinement.” Plaintiff alleges that after he was released from solitary confinement on September 4, 2001, he discovered in November 2001 that the Defendants Berry and Paul had called his unit officer on August 31, 2001 pretending to be of Middle Eastern descent. Plaintiff alleges that the purpose of this phone call was to create fear among prison security, and that his placement in solitary confinement was as a result of this telephone call. Plaintiff alleges that he had complained to the Defendant Allen about Berry’s “unprofessional behavior” prior to August 31, 2001, but that Allen had ignored his complaints and failed to take any action. Plaintiff alleges that Allen’s failure to act further encouraged Berry and other officers to continue their unprofessional conduct toward him.

Plaintiff alleges that on September 11, 2001, he was ordered back into solitary by Defendants Hawk and Cooksey “without any disciplinary proceeding or security justification and in violation of the Bureau of Prison’s own rules and regulations.” Plaintiff alleges that this conduct violated his “liberty interest in remaining in the general population.” Plaintiff further alleges that from September 11, 2001 through October 30, 2001, the Defendants Hawk, Cooksey and Dove unlawfully denied him access to the Courts, his attorneys, his jailhouse lawyer, and “the outside world” in violation of his right to due process. Plaintiff alleges that from October 9, 2001 through October 16, 2003, the Defendants Dove, Yates, Allen, Gravette, Wade, Vining, and Finnerty “subjected me to constant torture, taunts, harassment, physical and mental torment and denied me my basic human needs without any due process.” He also alleges that, from September 11, 2001 through August 26, 2002, he was “exposed to constant high noise level that cause me a chronic sleep deprivation,” and that the Defendants Dove, Yates, Allen, Gravette, Wade, Vining, and Smith failed to take any corrective action to reduce the high noise level in the special housing unit.

Plaintiff next alleges that from the period February 1, 2001 through June 27, 2002, the Defendants Dove, Yates, Allen and Irving denied him access to dental care, and that as a result he developed “infections and abscesses.” Plaintiff alleges that from September 11, 2001 through August 26, 2002, the Defendants Dove, Yates, Allen, Smith and Chartier also denied him his “basic religious rights,” and that during this same period of time, he was “placed ... under conditions to my physical and mental health ..., denied ... procedural due process ..., [and] denied ... access to [his] jail-house and legal assistants.” Plaintiff seeks monetary damages. See generally, Verified Complaint.

In the verified supplement to his Complaint, in which Plaintiff asserts claims against the United States under the FTCA, Plaintiff alleges that his being subjected to high noise levels was negligent and a violation of the standard of care owed to the Plaintiff, and that the Defendant’s negligence exposed him to “constant high level of noise that caused [Plaintiff] to suffer from sleep deprivation, chronic insomnia and other physical and mental suffering ....” from September 11, 2001 through August 26, 2002. Plaintiff also alleges that the Defendants failed to provide him with proper dental care between February 1, 2001 and June 27, 2002, which care fell below the “minimum standards of acceptable professional practice.” Plaintiff alleges that the Defendants’ failure in this regard resulted in him developing “infection[s], abscesses and pain,” resulting in “serious, permanent and continuing injuries and damages.... ” Finally, Plaintiff complains that the Defendants were negligent in failing to protect him from physical and mental abuses from government employees and agents, all as outlined in his original Complaint. See generally, Plaintiffs Supplement to his Complaint; see also Order filed November 4, 2005 [setting forth what claims from Plaintiffs supplement to his Complaint are properly before this Court]. Plaintiff again seeks monetary damages, as well as redesignation to a different facility.

In support of summary judgment in the case, the Defendants have submitted voluminous evidence and exhibits. This material establishes that Plaintiff was incarcerated at FCI Edgefield from February 1, 2001 through August 28, 2002 following his conviction in 1994 as being part of the original World Trade Center bombing plot. Defendants’ Exhibits A, I, J. The Defendant Tyrone Allen has submitted an affidavit (Defendants’ Exhibit I) wherein he attests that he is Associate Warden of Programs at FCI Edgefield. Allen attests that Plaintiff was one of six persons convicted in the first attack on the World Trade Center in 1993, and that because of Plaintiffs status and the uncertainty as to how the general population would react toward him, Plaintiff was placed in the prison’s special housing unit (SHU) following the second attack on the World Trade Center on September 11, 2001, where he remained pending his transfer to Colorado on August 28, 2002. Allen attests that this placement was for Plaintiffs own personal protection, as well as to maintain the safe and orderly operation of the prison. Allen attests that he never tortured, taunted, harassed, or subjected Plaintiff to physical and/or mental pain at any time, and that he does not recall Plaintiff complaining to him about being subjected to unprofessional behavior by the Defendant Berry prior to August 31, 2001. Allen attests that there was an incident between Plaintiff and Berry on August 31, 2001 where Plaintiff stated that Berry acted unprofessionally toward him, and that Plaintiff was thereafter placed in the SHU pending an investigation of the matter by the Office of Internal Affairs.

Allen further attests that, with respect to the period October 9, 2001 through October 16, 2001, Plaintiff was placed in ambulatory restraints in the observation cell in SHU because of his disruptive behavior and conduct of destroying government property. Allen attests that on October 9, 2001, Plaintiff deliberately flooded his cell by blocking up the toilet and then continually flushing the toilet, causing water to overflow onto the cell floor. Allen attests that Plaintiff was removed from his cell and placed into an observation cell, following which Plaintiff became disruptive in the observation cell by breaking off the sprinkler head from the fire protection unit, causing the cell to flood with water. See Defendants’ Exhibit F (Response to Administrative Remedy). Allen attests that, due to Plaintiffs continuous disruptive behavior, a use of force team placed him in ambulatory restraints, but that even while in ambulatory restraints, Plaintiff told staff that he would continue his disruptive behavior if removed from the restraints. Id. The following day (October 10, 2001) Plaintiff attempted to break the sprinkler head in the observation cell, threw his food tray on the range floor from the food slot, and slipped the belly chain from his waist while in ambulatory restraints. Id. Plaintiff was warned that further actions would result in his being placed in soft, four point restraints.

Allen attests that by October 12, 2001, Plaintiff had refused his eighth consecutive meal and complained of stomach pain, following which he was taken to the Health Services Department and a medical assessment was performed. Plaintiff later agreed to eat after a court order for forced feeding was obtained. See also Plaintiffs Exhibit H [Order of the Honorable Margaret B. Seymour, United States District Judge]. Allen attests that there is no documentation from this time period to support Plaintiffs claims that he was tortured, taunted, harassed, or subjected to physical and mental pain by him [Allen] or any other Defendant.

With respect to Plaintiffs allegations that he was exposed to a constant high level of noise which caused him sleep deprivation, Allen attests that he has no knowledge that any such allegations were expressed to executive staff until Plaintiff filed a formal administrative remedy on June 17, 2002. Allen attests that the log book maintained by staff does not reflect any complaints by the Plaintiff of not being able to sleep due to noise, and that in fact a significant number of log entries indicate Plaintiff slept in normal amounts and patterns. Allen further attests that Plaintiff never personally complained to him about the noise level, even though he spoke to Plaintiff periodically during his routine SHU visits. Allen also attests that he does not personally provide dental care to inmates, nor does he recall Plaintiff personally complaining to him about being denied dental care. Allen attests that when Plaintiff filed an administrative remedy on or about May 19, 2002 complaining about not receiving dental care, the Defendant Dove referred Plaintiff to the BOP’s policy specifying that only urgent dental care is provided for inmates in the special housing unit. Plaintiff then informed medical staff he had an urgent dental complaint, and he was seen and evaluated by the chief dental officer on June 27, 2002 for complaints of a tooth ache. Allen attests that Plaintiff was given an antibiotic and pain medication accordingly.

As for Plaintiffs allegations concerning the denial of basic religious rights, Allen attests that he does not personally provide religious guidance to inmates, nor does he recall Plaintiff complaining to him about being denied his basic religious needs. When Plaintiff filed an administrative remedy alleging he was being denied a visit from an Islamic Imán and other religious opportunities, this was the first time (to Allen’s knowledge) that Plaintiff had made such a request. Allen attests that the Religious Services Department arranged for Plaintiff to speak with a Bureau of Prisons staff Iman for religious counseling, that he was provided with a holy Koran (the only Arabic literature available), and that he was permitted to purchase religious personal property items from the commissary that were authorized in administrative detention. Allen attests that Plaintiff was not, however, allowed a Miswak and a radio, because these were unauthorized items while housed in administrative detention. Allen attests that the administrative remedy shown on Plaintiffs forms indicates Plaintiff was also provided the opportunity to conduct his prayer sessions and the opportunity to conduct Ju-mah prayer alone in his cell, and that Plaintiff was given the same access to religious items as the other inmates in administrative detention. Finally, Allen attests that he has no knowledge of Plaintiff being denied procedural due process, access to a jailhouse lawyer, or being subjected to conditions harmful to his physical and mental health. See generally, Allen Affidavit (Defendants’ Exhibit I); Defendants’ Exhibit AZ, pp. 109-118.

The Defendant Kahle Vinning has also submitted an affidavit, wherein she attests that she is a lieutenant at FCI Edgefield. Vinning attests that during the time period of October 9, 2001 through October 16, 2001, documentation reflects that Plaintiff was placed in ambulatory restraints in the observation cell in SHU because of his disruptive behavior or destroying government property, all as was also set forth by Allen in his affidavit. Vinning further attests to the same facts as were set forth by Allen with respect to Plaintiffs refusing food and being seen by the medical staff. As for Plaintiffs complaints of being exposed to a constant high level of noise, Vinning attests that Plaintiff never expressed any such complaints to her personally. Vinning further attests that Plaintiff was under constant staff supervision during the time period he was in the SHU, that a log book was maintained of Plaintiffs daily routine, and that there is no record that Plaintiff made complaints of not being able to sleep due to noise, and in fact the records contain a significant number of log entries indicating that Plaintiff slept in normal amounts and patterns. See generally, Vinning Affidavit (Defendants’ Exhibit J).

The Defendants have also submitted an affidavit from Roy Lathrop, who attests that he is employed as a paralegal at FCI Edgefield. Lathrop attests that he has reviewed the log books maintained on the Plaintiff, Register No. 40637-053, from September 11, 2001 to August 28, 2002. Lathrop attests that Plaintiff was under constant staff supervision during that period of time, and that there are no entries in these log books that Plaintiff ever complained about not being able to sleep due to noise, while a significant number of log entries indicate Plaintiff slept in normal amounts and patterns. Lathrop further attests that there is no evidence in these records to show that Plaintiff complained to Allen, Vinning, or the Defendant Fin-nerty, about the noise level in the SHU or that any Defendant ignored such complaints. See generally, Lathrop Affidavit (Defendants’ Exhibit L).

The Defendant Alex Chartier has also submitted an affidavit wherein he attests that he is employed as the supervisory chaplain at FCI-Edgefield, and in this capacity is responsible for the overall supervision of all religious activities at the institution. Chartier confirms that Plaintiff was placed in the SHU following the second attack on the World Trade Center on September 11, 2001, but attests that he is not responsible for decisions made regarding Plaintiffs placement in the SHU. Chartier attests that, due to the gravity of Plaintiffs position following the September 11, 2001 attack, all decisions regarding his status were made by the executive staff of the institution and the Special Investigative Agent (SIA).

Chartier further attests that, although Plaintiff makes a conclusory statement in his Complaint that he [Chartier] denied Plaintiff basic religious rights, Plaintiff does not actually identify what he was purportedly denied. Chartier attests that Plaintiff was given the same access to religious items as other inmates in administrative detention, and that Plaintiff never made a request to the Religious Services Department to have a visit or phone call from an Islamic representative. Chartier attests that the first he heard of such a request was after Plaintiff filed an administrative remedy alleging he was being denied a visit from an Iman along with other complaints. Chartier attests that, following the filing of Plaintiffs administrative remedy, the Religious Services Department made arrangements for Plaintiff to telephonically speak with a BOP staff Iman for religious counseling, and that Plaintiff had already been provided with a holy Quran, which was the only Arabic literature available. Plaintiff had also already been permitted to purchase religious personal property items from the commissary that were authorized in administrative detention, although he was not allowed a Miswak and a radio because these were unauthorized items. Plaintiff was, however, provided the opportunity to conduct his prayer sessions and the opportunity to conduct Jumah prayer alone in his cell. Chartier attests that he has never violated any of Plaintiffs constitutional rights, including his First Amendment right to free exercise of religion. See generally, Chartier Affidavit (Defendants’ Exhibit P).

An affidavit has also been filed by Kevin Joy, a unit manager at FCI Edgefield. Joy attests that his duties include overall supervision of unit staff on a housing unit, and that during Plaintiffs time in administrative detention in the SHU he was afforded the same opportunities of all inmates who are in administrative detention. Joy further attests that Plaintiff had progress reviews in accordance to policy, as well as access to his Unit Team when different staff from the Team made mandatory rounds in the SHU. Joy attests that Plaintiff was also provided the opportunity to utilize the SHU law library or request other books and documentation from the Education Department, that he had access to medical personnel who made rounds in the SHU daily, and that he was given access to the courts and his attorney. See generally, Joy Affidavit (Defendants’ Exhibit Q); Rippon Affidavit (Defendants’ Exhibit C, Attachment G).

The Defendant Dan Dove has submitted an affidavit wherein he attests that during much of the relevant time period he was the Warden at FCI Edgefield, where he was charged with supervising the operation of the institution. Dove attests that as Warden, he delegated daily operational authority to associate wardens and department heads, that he therefore did not personally provide medical or dental attention to inmates, nor was he directly involved in the provision of religious services to inmates. Dove attests that he was responsible for reviewing and signing all administrative remedies filed by inmates at the institution, and that when an administrative remedy was filed it was assigned to the appropriate department head for investigation. Dove attests that he did not personally investigate matters raised in an inmate’s administrative remedy, but did ensure the final response was accurate and within policy prior to signing it.

Dove attests that after the World Trade Center was attacked on September 11, 2001, he had Plaintiff placed in the SHU for his own protection as he was concerned for Plaintiffs safety given his prior crime and terrorist activities. Dove attests that he submitted paperwork to the Southeast Regional Director on October 26, 2001 to have Plaintiff redesignated to Colorado in order to meet his security needs in the post 9-11 world. Plaintiff was thereafter transferred to Colorado on August 28, 2002.

Dove attests that the September 11 attack lead to an intensive nationwide crackdown on suspected terrorists and a heightened security status that continues to this day. As a convicted member of this terrorist network, and in light of Plaintiffs criminal history and participation in the 1993 attack on the World Trade Center, Dove attests that Plaintiff was placed in a higher security status on September 11, 2001, and that thereafter guidance from the Central Office was given to all institutions on how to handle inmates and detainees associated with the terrorist group responsible for the September 11 attacks. Dove attests that, based on this guidance, Plaintiffs status, and the uncertainty as to how the general population would react towards him, Plaintiff remained in administrative detention at FCI Edgefield pending his transfer. Dove specifically attests that he was concerned that Plaintiff might be targeted by other inmates because of his association with the group responsible for the 9/11 attacks and his earlier involvement in the World Trade Center bombing, and that housing Plaintiff in the SHU was, in his best correctional judgment, the prudent thing to do.

Dove attests that while Plaintiff was housed in the SHU, he was afforded the same opportunities as any other inmate in administrative detention, including access to the administrative remedy program, which he frequently utilized. Plaintiff also had periodic progress reviews and a weekly detention review in accordance with policy, as well as access to him [Dove], the associate wardens, department heads, and his Unit Team during the mandatory weekly rounds in the SHU. Dove attests that Plaintiff was provided with the opportunity to utilize the SHU law library or to request other materials from the Education Department, that he had daily access to medical staff, and that he was able to communicate with the courts and his attorneys through correspondence, visiting, and the telephone. See Defendants’ Exhibit AZ, pp. 134-147.

Dove attests that he never tortured, taunted, harassed, or subjected Plaintiff to physical and/or mental pain, nor did he allow his staff to do so. Dove attests that during the time period Plaintiff alleges he was mistreated (October 9-16, 2001), he was placed in mandatory restraints due to his disruptive behavior after he had flooded two cells on the same day. Dove attests that ambulatory restraints were used to try and calm Plaintiffs behavior, and that once he stopped trying to flood his cell and threatening harm to others the restraints were removed. Dove also attests that Plaintiff never personally complained to him about the noise level in the SHU, even though he spoke to Plaintiff periodically during his weekly SHU visits. Dove attests that he also does not recall Plaintiff personally complaining to him about being denied dental care, but that once Plaintiff filed an administrative remedy complaining about not receiving dental care on May 19, 2002, he reviewed his claim and denied same after an investigation by the Health Services Administrator revealed dental staff were addressing Plaintiffs needs. See Defendants’ Exhibit AZ, pp. 80-91.

With respect to religious materials, Dove attests that he does not personally provide religious guidance to inmates, but that in any event he does not recall Plaintiff ever complaining to him about being denied his religious needs during his weekly visits to the SHU. Plaintiff did file an administrative remedy alleging he was being denied religious rights, which Dove attests he denied after an investigation showed Plaintiff was given the same access to religious items as the other inmates in administrative detention. Plaintiff also filed an administrative remedy on November 13, 2001 alleging he was being denied access to the courts, his attorneys, and legal materials, which Dove attests he denied after an investigation revealed that Plaintiff was able to maintain contact with his attorneys by telephone. Dove attests that, initially after 9/11 and upon directions from the Central Office, all correspondence (via the use of mail) was restricted due to national security concerns, but that shortly thereafter these mail restrictions were imposed, the restrictions were lifted with respect to