WATSON v. ZICKEFOOSE

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 6/27/2011. (bdk, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CRAIG WATSON,
Plaintiff,
v.
WARDEN DONNA ZICKEFOOSE,
Defendant.

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Civil Action No. 11-3594 (RMB)
OPINION

APPEARANCES:
Plaintiff pro se
Craig Watson
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
BUMB, District Judge
Plaintiff Craig Watson, a prisoner currently confined at the
Federal Correctional Institution at Fort Dix, New Jersey, seeks
to bring this action in forma pauperis pursuant to Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), alleging
violations of his constitutional rights.

Based on his affidavit

of indigence and the absence of three qualifying dismissals
within 28 U.S.C. §1915(g), the Court will grant Plaintiff’s
application to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915(a) and order the Clerk of the Court to file the Complaint.

At this time, the Court must review the Complaint to
determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be
granted, or because it seeks monetary relief from a defendant who
is immune from such relief.
I.

BACKGROUND

The following factual allegations are taken from Plaintiff’s
Complaint and are accepted as true for purposes of this review.
Plaintiff alleges that the Bureau of Prisons recently
recalculated his sentence computation data, and reduced the
amount of credit he previously had been credited for time served
in state prison, thus extending his release date.
that the sentence computation is incorrect.

He alleges

He seeks monetary

damages and restoration of the credit for time served in state
prison.
II.

STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,
certain in forma pauperis and prisoner actions that are
frivolous, malicious, fail to state a claim, or seek monetary
relief from a defendant who is immune from such relief.

See 28

U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.
§ 1915A (actions in which prisoner seeks redress from a
governmental defendant); 42 U.S.C. § 1997e (prisoner actions
brought with respect to prison conditions).

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In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.

Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).

The Court must

“accept as true all of the allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them
in the light most favorable to the plaintiff.”

Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).
A complaint is frivolous if it “lacks an arguable basis
either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the
former § 1915(d)).

The standard for evaluating whether a

complaint is “frivolous” is an objective one.

Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).
Where a complaint can be remedied by an amendment, a
district court may not dismiss the complaint with prejudice, but
must permit the amendment.

Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane
v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal
pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg
County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
III.

Bivens v. Six Unknown Agents

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In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 389 (1971), the Supreme Court held that
a violation of the Fourth Amendment by a federal agent acting
under color of his authority gives rise to a cause of action
against that agent, individually, for damages.

The Supreme Court

has also implied damages remedies directly under the Eighth
Amendment, see Carlson v. Green, 446 U.S. 14 (1980), and under
the equal protection component of the Fifth Amendment’s Due
Process Clause, see Davis v. Passman, 442 U.S. 228 (1979).

But

“the absence of statutory relief for a constitutional violation
does not necessarily mean that courts should create a damages
remedy against the officer responsible for the violation.”
Schreiber v. Mastrogiovanni, 214 F.3d 148, 152 (3d Cir. 2000)
(citing Schweiker v. Chilicky, 487 U.S. 412 (1988).
Relying upon Bivens, several lower federal courts have
implied a damages cause of action against federal officers, under
the Due Process Clause of the Fifth Amendment, for claims by
federal pre-trial detainees alleging inadequate medical care or
unconstitutional conditions of confinement.

See, e.g., Lyons v.

U.S. Marshals, 840 F.2d 202 (3d Cir. 1988); Magluta v. Samples,
375 F.3d 1269 (11th Cir. 2004); Loe v. Armistead, 582 F.2d 1291
(4th Cir. 1978), cert. denied, 446 U.S. 928 (1980).
The Supreme Court has not addressed whether supervisors in
Bivens actions may be held liable on a theory of respondeat

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superior.

Most courts to address the issue, however, have held

that liability may not be based on respondeat superior.

See,

e.g., Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.
2000)(collecting cases); Laswell v. Brown, 683 F.2d 261, 268 &
n.11 (8th Cir. 1982), cert. denied, 459 U.S. 1210 (1983) (basing
its conclusion on the fact that the Supreme Court has looked to
42 U.S.C. § 1983 cases in evaluating the nature of defendant
officials’ qualified immunity); Kite v. Kelly, 546 F.2d 334,
337-38 (10th Cir. 1976).

See also Parker v. U.S., 197 Fed.Appx.

171, 173 n.1 (3d Cir. 2006) (not precedential); Balter v. U.S.,
172 Fed.Appx. 401, 403 (3d Cir. 2006) (not precedential).

This

Court finds persuasive the reasoning of those courts that have
declined to impose respondeat superior liability in Bivens
actions.
IV.

ANALYSIS

In a series of cases beginning with Preiser v. Rodriguez,
411 U.S. 475 (1973), the Supreme Court has analyzed the
intersection of federal civil rights and habeas actions.

In

Preiser, state prisoners who had been deprived of good-conducttime credits by the New York State Department of Correctional
Services as a result of disciplinary proceedings brought a § 1983
action seeking injunctive relief to compel restoration of the
credits, which would have resulted in their immediate release.
411 U.S. at 476.

The prisoners did not seek compensatory damages

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for the loss of their credits.

411 U.S. at 494.

The Court held

that “when a state prisoner is challenging the very fact or
duration of his physical imprisonment, and the relief he seeks is
a determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal remedy
is a writ of habeas corpus.”

Id. at 500.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Court
addressed a corollary question to that presented in Preiser,
whether a prisoner could challenge the constitutionality of his
conviction in a suit for damages only under § 1983, a form of
relief not available through a habeas corpus proceeding.

Again,

the Court rejected § 1983 as a vehicle to challenge the
lawfulness of a criminal judgment.
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court’s issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable
under § 1983.
512 U.S. at 486-87 (footnote omitted).

The Court further

instructed district courts, in determining whether a complaint
states a claim under § 1983, to evaluate whether a favorable

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outcome would necessarily imply the invalidity of a criminal
judgment.
Thus, when a state prisoner seeks damages in a § 1983
suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if
it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or
sentence has already been invalidated. But if the
district court determines that the plaintiff’s action,
even if successful, will not demonstrate the invalidity
of any outstanding criminal judgment against the
plaintiff, the action should be allowed to proceed, in
the absence of some other bar to the suit.
512 U.S. at 487 (footnotes omitted).

The Court further held that

“a § 1983 cause of action for damages attributable to an
unconstitutional conviction or sentence does not accrue until the
conviction or sentence has been invalidated.”

Id. at 489-90.

In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme
Court applied the lessons of Preiser and Heck to a state prisoner
action, seeking compensatory and punitive damages, challenging
the constitutionality of procedures used in a prison disciplinary
proceeding that resulted in the loss of good-time credits, but
not necessarily challenging the result and not seeking the
restoration of the good-time credits.

Again, the Court

emphasized that such a claim is not cognizable under § 1983 if a
favorable outcome would necessarily imply the invalidity of the
challenged judgment, there the disciplinary finding and
punishment.

520 U.S. at 646-8.

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“Considering Heck and summarizing the interplay between
habeas and § 1983 claims, the Supreme Court recently explained
that, ‘a state prisoner's § 1983 action is barred (absent prior
invalidation) - no matter the relief sought (damages or equitable
relief), no matter the target of the prisoner's suit (state
conduct leading to conviction or internal prison proceedings) if success in that action would necessarily demonstrate the
invalidity of the confinement or its duration.’”

Williams v.

Consovoy, 453 F.3d 173, 177 (3d Cir. 2006) (quoting Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005)) (emphasis in original).
Here, Plaintiff’s challenge to the calculation of his
sentence is a challenge to the duration of his confinement and
must be brought as a habeas action under 28 U.S.C. § 2241,
following exhaustion of his administrative remedies.

His action

for damages for any allegedly unconstitutional confinement has
not yet accrued, as it has not yet been otherwise determined that
the calculation of his sentence was erroneous.1
For the foregoing reasons, the Complaint will be dismissed
without prejudice.

1

The doctrine of Heck, decided in the context of § 1983
civil rights actions against state actors, applies to Bivens-type
actions against federal officers. See, e.g., Robinson v. Jones,
142 F.3d 905, 906-07 (6th Cir. 1998); Messer v. Kelly, 129 F.3d
1259, 1997 WL 712811 (4th Cir. 1997) (unpubl.); Pandey v.
Freedman, 66 F.3d 306, 1995 WL 568490 (1st Cir. 1995) (unpubl.);
Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995); Tavarez v.
Reno, 54 F.3d 109, 110 (2d Cir. 1995); Stephenson v. Reno, 28
F.3d 26, 27 (5th Cir. 1994).
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V.

CONCLUSION

For the reasons set forth above, the Complaint will be
dismissed without prejudice, pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii), for failure to state a claim.

It does not

appear that Plaintiff can cure the deficiencies of his Complaint
at this time.
An appropriate Order follows.

s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
Dated: June 27, 2011

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