Whylie v. Baird et al
PRISCS - INITIAL REVIEW ORDER re 1 Complaint filed by Joy Whylie, ( Amended Pleadings due by 1/25/2013, Dismissal due by 1/25/2013). Signed by Judge Alvin W. Thompson on 12/26/12. (Corriette, M.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MAUREEN BAIRD, ET AL.
INITIAL REVIEW ORDER
Plaintiff Joy Whylie, currently incarcerated at the Federal
Correctional Institution in Danbury, Connecticut (“FCI Danbury”),
has filed a civil action against Warden Maureen Baird and Unit
Manager Richard Shamro pursuant to the Federal Tort Claims Act
(“FTCA”) and Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971) (“Bivens”).
Both defendants are
employees of FCI Danbury.
The plaintiff alleges that on October 7, 2011 Unit Manager
Shamro submitted a request that she be placed on telephone
restriction due to the fact that the nature of her crime
demonstrated a propensity to abuse telephone privileges.
October 13, 2011, Warden Baird determined that the plaintiff should
be assigned the Public Safety Factor (“PSF”) for serious telephone
abuse and authorized the placement of the plaintiff on a telephone
Warden Baird indicated that she would review the
restriction in one month.
On November 21, 2011, Unit Manager Shamro submitted another
request that the plaintiff be placed on telephone restriction due
to the fact that the nature of her crime demonstrated a propensity
to abuse telephone privileges.
On November 28, 2011, Warden Baird
approved the placement of the plaintiff on a telephone restriction
to protect the safety and security of inmates, staff and the
On December 27, 2011, Warden Baird again approved the
placement of the plaintiff on a telephone restriction for safety
and security reasons.
The plaintiff alleges that she has not been
permitted her one telephone call per month as required by 28 C.F.R.
In addition, the plaintiff claims that Warden Baird
did not review the PSF telephone restriction within six months of
December 27, 2011, as required by Federal Bureau of Prisons Program
Statement 5264.08, Section 13.
The plaintiff claims that the actions of Warden Baird and Unit
Manager Shamro in restricting her telephone use have violated her
Due Process rights as well as 18 U.S.C. § 4042 and Bureau of
Prisons telephone regulations/policies.
In early January 2012, the
plaintiff filed a claim under the FTCA with the Federal Bureau of
Prisons Northeast Regional Office claiming that the telephone
restrictions had caused her emotional distress.
On May 7, 2012,
the United States Department of Justice Federal Bureau of Prisons
Northeast Regional Office denied her claim.
Pursuant to 28 U.S.C. § 1915A(b), the court must review
prisoner civil complaints against governmental actors and “dismiss
... any portion of [a] complaint [that] is frivolous, malicious, or
fails to state a claim upon which relief may be granted,” or that
“seeks monetary relief from a defendant who is immune from such
This requirement applies both where the inmate has
paid the filing fee and where he is proceeding in forma pauperis.
See Carr v. Dvorin, 171 F.3d 115 (2d Cir. 1999) (per curiam).
Rule 8 of the Federal Rules of Civil Procedure requires that a
complaint contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Although detailed allegations are not required, “a complaint
must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.
A claim has
facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
A complaint that includes only “‘labels and
conclusions,’ ‘a formulaic recitation of the elements of a cause of
‘naked assertion[s]’ devoid of ‘further factual
enhancement,’ ” does not meet the facial plausibility standard.
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557
Although courts still have an obligation to liberally
construe a pro se complaint, see Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009), the complaint must include sufficient factual
allegations to meet the standard of facial plausibility.
The plaintiff claims that the defendants violated her Due
Process rights when they failed to permit her to make one telephone
call per month and also failed to review the telephone restriction
within six months of November 28, 2011.
In Bivens, the Supreme
Court held that federal officials may be sued for damages in their
individual capacities for the violations of a person’s
Thus, a Bivens action is the nonstatutory
federal counterpart of a civil rights action pursuant to 42 U.S.C.
See Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981).
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a),
requires an inmate to exhaust her administrative remedies before
bringing an action with respect to prison conditions.
Court has held that this provision requires an inmate to exhaust
administrative remedies before filing any type of action in federal
court, see Porter v. Nussle, 534 U.S. 516, 524, 532 (2002),
regardless of whether the inmate may obtain the specific relief she
desires through the administrative process.
See Booth v. Churner,
532 U.S. 731, 741 (2001).
The exhaustion requirement applies
equally to Bivens claims.
See Williams v. Metropolitan Detention
Center, 418 F. Supp. 2d 96 (E.D.N.Y. 2005).
The statute clearly
states that inmates must exhaust all available administrative
remedies before filing suit.
(2d Cir. 2001).
See Neal v. Goord, 267 F.3d 116, 122
Thus, any attempt to exhaust administrative
remedies after the case was filed is ineffective to satisfy the
The available administrative remedies for a Bivens claim
consist of a four-step process set forth in the Bureau of Prisons’
Administrative Remedy Program.
See 28 C.F.R. § 542.
process is as follows: (1) the inmate must attempt informal
resolution with prison staff; (2) the inmate must submit a formal
written “Administrative Remedy Request” to the Warden within twenty
days of the incident giving rise to her claim; (3) the inmate must
appeal an adverse decision from the Warden to the appropriate
Regional Director within twenty days from the denial of the formal
request; and (4) the inmate must appeal the Regional Director’s
adverse decision to the Bureau of Prisons General Counsel’s office
within thirty days.
See 28 C.F.R. §§ 542.13(a), 542.14(a),
The complaint filed by the plaintiff is not dated, but was
received originally on August 24, 2012, and officially filed on
September 12, 2012.
On October 31, 2012, the court issued an Order
directing the plaintiff to explain why the Bivens claims should not
be dismissed for failure to exhaust administrative remedies.
November 7, 2012, in response to the court’s Order, the plaintiff
filed a notice with attached evidence of exhaustion of her
administrative remedies pursuant to the Bureau of Prisons’
Administrative Remedy Program.
(See Doc. No. 8.)
The court notes, however, that the plaintiff has not exhausted
the claims she raises in her complaint.
The contention that she
had not been permitted to make one call a month pursuant to 28
C.F.R. § 540.100(b) was not raised by the plaintiff until she filed
her appeal with the Regional Director at the Bureau of Prisons,
Northeast Regional Office.
The Regional Director noted this fact
and directed the plaintiff to address the issue at the
institutional level before seeking relief on appeal.
the petitioner’s claim that the PSF restriction was not reviewed by
Warden Baird within six months of December 2011 was not raised in
the plaintiff’s informal requests or subsequent administrative
Accordingly, the plaintiff has not exhausted her
available administrative remedies as to her Bivens claims prior to
filing this action.
The Bivens claims are dismissed.
U.S.C. § 1915A(b)(1).
With regard to the plaintiff’s claim under the FTCA, the
plaintiff alleges that the defendants’ refusal to permit her to use
the telephone to call her family subjected her to emotional
The FTCA “waives the sovereign immunity of the federal
government for claims based on the negligence of its employees.”
Coulthurst v. United States, 214 F.3d 106, 108 (2d Cir. 2000).
Specifically, the FTCA authorizes suits against the United States
to recover damages
for injury or loss of property, or personal
injury or death caused by the negligent or
wrongful act or omission of any employee of the
Government while acting within the scope of his
office or employment, under circumstances where
the United States, if a private person, would
be liable to the claimant in accordance with
the law of the place where the act or omission
28 U.S.C. § 1346(b)(2).
The United States is the only proper party
in a suit seeking monetary damages for torts committed by federal
See 28 U.S.C. 2674; Mignogna v. Sair Aviation, Inc.,
937 F.2d 37, 40 (2d Cir. 1991) (stating that an action under the
FTCA “must be brought against the United States rather than an
agency thereof”); C.P. Chem. Co., Inc. v. United States, 810 F.2d
34, 37 n. 1 (2d. Cir. 1987) (“[O]nly the United States may be held
liable for torts committed by a federal agency, and not the agency
The caption of the complaint does not include the United
States as a defendant.
Because the plaintiff does not name the
United States as a party to this action, the court does not have
jurisdiction to decide the claim under the FTCA.
complaint is dismissed as to the FTCA claim against the defendants.
In accordance with the foregoing, the court enters the
The Bivens claims against defendants Baird and Shamro are
dismissed without prejudice for failure to exhaust administrative
See to 28 U.S.C. § 1915A(b)(1).
The FTCA claim is
dismissed against defendants Baird and Shamro for lack of subject
See 28 U.S.C. § 1915A(b)(1).
plaintiff chooses to appeal this decision, she may not do so in
forma pauperis, because such an appeal would not be taken in good
See 28 U.S.C. § 1915(a)(3).
If the plaintiff wishes to pursue her FTCA claim, the court
will permit her thirty days to file an amended complaint naming the
United States as the only defendant.
If no amended complaint has
been filed within the time specified, the Clerk is directed to
enter judgment for the defendants and close this case.
It is so ordered.
Dated this 26th day of December 2012, at Hartford,
Alvin W. Thompson
United States District Judge
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