BROWN v. ZICKEFOOSE et al

Filing 11

OPINION. Signed by Judge Robert B. Kugler on 4/10/2015. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
DEMETRIUS BROWN,
:
:
Plaintiff,
:
Civ. No. 11-4421 (RBK) (AMD)
:
v.
:
OPINION
:
DONNA ZICKEFOOSE, et al.,
:
:
Defendants.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Plaintiff is a former federal prisoner who was previously incarcerated at F.C.I. Fort Dix
in Fort Dix, New Jersey. Plaintiff has been released from federal incarceration since initially
filing this action. He is proceeding pro se with a proposed second amended complaint pursuant
to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). His
original complaint was dismissed predominantly with prejudice for failure to state a claim upon
which relief could be granted except for a few claims that were dismissed without prejudice.
Plaintiff’s first amended complaint was also dismissed, but plaintiff was given the opportunity to
file a second amended complaint on the claims that were dismissed without prejudice.
Plaintiff has filed an application to reopen this action and has included a proposed second
amended complaint. Therefore, the Clerk will be ordered to reopen this case and file the second
amended complaint. At this time, the Court must review the proposed complaint pursuant to 28
U.S.C. § 1915A 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

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defendant who is immune from suit. 1 For the following reasons, the complaint will be permitted
to proceed in part.
II.

BACKGROUND

The allegations of the second amended complaint will be construed as true for purposes
of this screening. Plaintiff names Donna Zickefoose, the former warden of F.C.I. Fort Dix, as a
defendant in this case as well as unknown other Federal Bureau of Prisons (“BOP”) officials.
On December 21, 2009, this Court dismissed a habeas petition that plaintiff had filed
pursuant to 28 U.S.C. § 2241. See Brown v. Grondolsky, No. 08-6367, 2009 WL 5206131
(D.N.J. Dec. 21, 2009). This Court determined that plaintiff’s habeas action should be brought
as a § 2255 motion in the District of Minnesota such that this Court lacked jurisdiction to
consider the § 2241 petition. On January 25, 2009, the Clerk docketed plaintiff’s notice of
appeal in his § 2241 habeas case. 2
On January 29, 2009, plaintiff alleges that he was taken into administrative detention at
F.C.I. Fort Dix, and then subsequently transferred on February 4, 2010 to MDC – Brooklyn.
Plaintiff states that this transfer was contrary to Federal Rule of Appellate Procedure 23(a).
Plaintiff alleges that this rule disallowed inmate transfers while an appeal is pending. He further
claims that he was denied access to his legal materials to prepare his appeal. Plaintiff argues that
he would have won his appeal in the Third Circuit had he had access to his legal materials.

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The screening provisions of § 1915A still apply in this case despite plaintiff’s release from
federal incarceration as the need for a district court to screen a complaint in a civil action filed by
a prisoner looks to plaintiff’s status when the case is filed. See Abdul-Akbar v. McKelvie, 239
F.3d 307, 314 (3d Cir. 2001) (citing Johnson v. Hill, 965 F. Supp. 1487, 1488 n.2 (E.D. Va.
1997)). In this case, plaintiff was a prisoner when he initiated this action.
The Third Circuit ultimately affirmed this Court’s decision that dismissed the habeas petition.
See Brown v. Grondolski, 392 F. App’x 905 (3d Cir. 2010) (per curiam).
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Plaintiff raises three claims in his second amended complaint: (1) retaliation; (2) denial
of access to courts; and (3) conspiracy. He requests monetary damages and injunctive relief.
III.

STANDARD OF REVIEW

A. Standard for Sua Sponte Dismissal
District courts must review complaints in civil actions in which a prisoner seeks redress
against a governmental employee or entity. See 28 U.S.C. § 1915A(a). Section 1915A(b) directs
district courts to dismiss sua sponte any claim that is frivolous, is malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. See id. § 1915A(b).
Under Ashcroft v. Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte screening for
failure to state a claim, 3 the complaint must allege “sufficient factual matter” to show that the
claim is facially plausible. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(citation omitted). “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.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012) (quoting
Iqbal, 556 U.S. at 678).
B. Bivens Actions
Bivens is the federal counterpart to 42 U.S.C. § 1983. See Walker v. Zenk, 323 F. App’x
144, 145 n. 1 (3d Cir. 2009) (per curiam) (citing Egervary v. Young, 366 F.3d 238, 246 (3d Cir.
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“[T]he legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915A
is identical to the legal standard employed in ruling on 12(b)(6) motions.” See Courteau v.
United States, 287 F. App’x 159, 162 (3d Cir. 2008) (citing Allah v. Seiverling, 229 F.3d 220,
223 (3d Cir. 2000)).
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2004)). In order to state a claim under Bivens, a plaintiff must allege: (1) a deprivation of a right
secured by the Constitution or laws of the United States; and (2) that the deprivation of the right
was caused by a person acting under color of federal law. See Couden v. Duffy, 446 F.3d 483,
491 (3d Cir. 2006) (stating that under Section 1983 “an individual may bring suit for damages
against any person who, acting under color of state law, deprives another individual of any
rights, privileges, or immunities secured by the United States Constitution or federal law,” and
that Bivens held that a parallel right exists against federal officials); see also Collins v. F.B.I.,
No. 10-3470, 2011 WL 1627025, at *6 (D.N.J. Apr. 28, 2011) (“The Third Circuit has
recognized that Bivens actions are simply the federal counterpart to § 1983 claims brought
against state officials’ and thus the analysis established under one type of claim is applicable
under the other.”) (internal quotation marks and citations omitted).
IV.

DISCUSSION

A. Retaliation Claim
Plaintiff alleges that Zickefoose knowingly and intentionally retaliated against him for
exercising his rights under the First Amendment by filing his habeas petition. Plaintiff
specifically alleges that Zickefoose was named as an appellee when he filed his appeal on
January 21, 2009, only a few days prior to when he was transferred out of F.C.I. Fort Dix.
“A prisoner alleging retaliation must show (1) constitutionally
protected conduct, (2) an adverse action by prison officials
sufficient to deter a person of ordinary firmness from exercising
his constitutional rights, and (3) a causal connection between the
exercise of his constitutional rights and the adverse action taken
against him.”
Mack v. Yost, 427 F. App’x 70, 72 (3d Cir. 2011) (per curiam) (quoting Mitchell v. Horn, 318
F.3d 523, 530 (3d Cir. 2003)).

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At this early screening stage, the Court will permit plaintiff’s retaliation claim to proceed
against Zickefoose. Plaintiff’s § 2241 habeas filing and subsequent appeal are constitutionally
protected conduct. See, e.g., Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997) (noting that
an individual’s constitutional right of access to the court is protected by the First Amendment).
Additionally, transferring a prisoner to another prison and placing him in administrative custody
are examples of adverse actions. See Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)
(prison transfer); Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (administrative custody).
Thus, plaintiff has sufficiently pled the second element of stating a retaliation claim.
Furthermore, the Court finds that plaintiff has adequately pled a causal link. In alleging
the third element of a retaliation claim, a plaintiff must allege that the constitutionally protected
conduct was a substantial or motivating factor for the adverse response. See Velasquez v.
Diguglielmo, 516 F. Ap’x 91, 95 (3d Cir. 2013) (per curiam) (citing Carter v. McGrady, 292
F.3d 152, 157, 158 (3d Cir. 2002); Rauser, 241 F.3d at 333)).
To establish the requisite causal connection for a retaliation claim
predicated on the First Amendment, the plaintiff (here, a prisoner)
usually has to prove one of two things: (1) an unusually suggestive
time proximity between the protected activity and the allegedly
retaliatory action; or (2) a pattern of antagonism coupled with
timing to establish a causal link. Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). If neither of these
showings is made, then the plaintiff must show that, from the
evidence in the record as a whole, the trier of fact should infer
causation.” Id.
DeFranco v. Wolfe, 387 F. App’x 147, 154 (3d Cir. 2010). While temporal proximity is relevant
in First Amendment retaliation cases, see Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 494
(3d Cir. 2002) (citing Rauser, 241 F.3d at 334), ‘“[t]he mere passage of time is not legally
conclusive proof against retaliation.’” Marra v. Phila. Housing Auth., 497 F.3d 286, 302 (3d
Cir. 2007) (quoting Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 894 (3d Cir.
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1993)) (other citation omitted). The Court notes the close temporal proximity between plaintiff’s
placement in administrative custody and his prison transfer to the filing of his appeal in his
habeas action that named Zickefoose as the appellee. This claim shall be permitted to proceed as
plaintiff has alleged the requisite elements of a retaliation claim against Zickefoose.
However, this does not end the inquiry on this claim as plaintiff also indicates that he
wishes to bring his retaliation claim against “other known and unknown Bureau of Prison
Officials.” Besides Zickefoose, who plaintiff alleges was named as an appellee in his habeas
appeal, the complaint lacks allegations that the other known and unknown BOP officials that he
is raising this claim against knew of his habeas filing and appeal. The fact that plaintiff does not
allege that these unnamed officials had knowledge of his protected First Amendment activity
warrants a finding that he failed to allege the requisite causal connection against these unnamed
officials. Accord Jordan v. Hastings, No. 12-7932, 2013 WL 3810577, at *4 (D.N.J. July 22,
2013) (finding that plaintiff failed to allege causal connection to sustain retaliation claim where
he failed to allege that defendants had knowledge of his constitutionally protected activity);
Griffin-El v. Beard, No. 06-2719, 2013 WL 228098, at *5 (E.D. Pa. Jan. 22, 2013) (“[A]
defendant may not be held liable for retaliation absent evidence sufficient to show that the
defendant knew of the plaintiff’s protected activity.”) (citing Laskaris v. Thornburgh, 733 F.2d
260, 265 (3d Cir. 1984); Booth v. King, 228 F. App’x 167, 172 (3d Cir. 2007); Jacobs v. Pa.
DOC, No. 04-1366, 2009 WL 3055324, at *5 (W.D. Pa. Sept. 21, 2009)). Thus, the retaliation
claim will be dismissed without prejudice against the unnamed officials for failure to state a
claim upon which relief may be granted.

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B. Access to Courts Claim
Plaintiff has also raised an access to courts claim. He claims that he was denied access to
his legal materials while in administrative detention and was without access to his legal materials
while he was being detained at MDC – Brooklyn. He asserts that had he had access to his legal
materials he would have won the Third Circuit appeal that affirmed the dismissal of his § 2241
habeas petition.
“Under the First and Fourteenth Amendments, prisoners retain a right of access to the
courts.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing Lewis v. Casey, 518 U.S.
343, 346 (1996)). “Where prisoners assert that defendants’ actions have inhibited their
opportunity to present a past legal claim, they must show (1) that they suffered an ‘actual injury’
– that they lost a chance to pursue a ‘nonfrivolous’ or ‘arguable’ underlying claim; and (2) that
they have no other “remedy that may be awarded as recompense” for the lost claim other than in
the present denial of access suit.” Id. (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)).
Thus, to satisfy the requisite pleading requirements, “[t]he complaint must describe the
underlying arguable claim well enough to show that it is ‘more than mere hope,’ and it must
describe the ‘lost remedy.’” Id. at 205-06 (footnote omitted) (citing Christopher, 536 U.S. at
416-17).
In Monroe, the Third Circuit determined that the complaint failed to state an access to
courts claim upon which relief could be granted and stated the following:
In this case, the defendants confiscated all of the plaintiffs’
contraband and non-contraband legal materials, including their
legal briefs, transcripts, notes of testimony, exhibits, copies of
reference books, treatises, journals, and personal handwritten
notes. In their initial pleadings, the plaintiffs’ claim rested solely
on the ground that the defendants confiscated their legal materials,
contraband and non-contraband alike. That claim, on its face, was
insufficient to state a claim under Harbury. So too were their
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subsequent amendments, which alleged that they lost the
opportunity to pursue attacks of their convictions and civil rights
claims but did not specify facts demonstrating that the claims were
nonfrivolous. Nor did they maintain that they had no other remedy
to compensate them for their lost claims. Even liberally construing
their complaints as we must do for pro se litigants, they do not
sufficiently allege that they have suffered an actual injury.
536 F.3d at 206 (internal citation and footnote omitted).
Plaintiff fails to describe the underlying arguable claims that he was prevented from
raising due to his placement in administrative custody and subsequent transfer to MDC –
Brooklyn. Therefore, pursuant to the pleading standards set forth above, plaintiff’s access to
courts claim will be denied without prejudice due to a failure to state a claim upon which relief
may granted.
Plaintiff also invokes Federal Rule of Appellate Procedure 23(a) in his second amended
complaint. That rule states as follows:
Pending review of a decision in a habeas corpus proceeding
commenced before a court, justice, or judge of the United States
for the release of a prisoner, the person having custody of the
prisoner must not transfer custody to another unless a transfer is
directed in accordance with this rule. When, upon application, a
custodian shows the need for a transfer, the court, justice, or judge
rendering the decision under review may authorize the transfer and
substitute the successor custodian as a party.
FED. R. APP. P. 23(a). Plaintiff’s citation to this rule notwithstanding, plaintiff’s due process
rights were not violated by the transfer. Indeed, the transfer, in and of itself, implicated no
protected liberty interest. See Hairston v. Nash, 165 F. App’x 233, 234 (3d Cir. 2006) (per
curiam) (citing Olim v. Wakinekona, 461 U.S. 238, 247-48 (1983)). Furthermore, as stated
above, plaintiff failed to state an access to courts claim as a result of the transfer since he failed
to allege an actual injury.

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C. Conspiracy
Plaintiff also attempts to assert a conspiracy claim. He claims that Zickefoose and
unnamed BOP officials “did knowingly and intentionally conspire to retaliate and deny
Demetrius Brown access to the court by transferring him to other prisons within the association
of Wardens following his filing of appeals as in order to disrupt, encumber, or frustrate his effort
to seek judicial review[.]” (Dkt. No. 10-2 at p. 8-9.) To make out a Bivens conspiracy claim,
“the plaintiff must ‘make specific factual allegations of a combination, agreement, or
understanding among all or between any of the defendants to plot, plan or conspire to carry out
the alleged chain of events’ to deprive the plaintiff of a federally protected right.” Lanin v.
Borough of Tenafly, No. 12-2725, 2014 WL 31350, at *5 (D.N.J. Jan. 2, 2014) (quoting
Figueroa v. City of Camden, 580 F. Sup. 2d 390, 402 (D.N.J. 2008) (citing Fioriglio v. City of
Atlantic City, 996 F. Supp. 379, 385 (D.N.J. 1998), aff’d 185 F.3d 861 (3d Cir. 1998); Green v.
City of Paterson, 971 F. Supp. 891, 909 (D.N.J. 1997), aff’d 770 F.2d 1070 (3d Cir. 1985))); see
also Toolasprashad v. Wright, No. 02-5473, 2006 WL 2264885, at *5 (D.N.J. Aug. 8, 2006)
(“To state a [conspiracy] claim under Bivens, a plaintiff must ‘establish (1) the existence of an
express or implied agreement among the defendant officers to deprive him of his constitutional
rights, and (2) an actual deprivation of those rights resulting from that agreement.’”) (quoting
Ting v. United States, 927 F.2d 1504, 1512 (9th Cir. 1991)).
Plaintiff fails to state a claim that the defendants conspired to prevent his access to the
courts because he has not alleged an actual access to courts deprivation for the reasons described
above. Furthermore, plaintiff also fails to state a claim that the defendants conspired to retaliate
against him. The complaint fails to allege an agreement between Zickefoose and any of the
unnamed John Doe defendants to deprive him of his constitutional right to be free from First

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Amendment retaliation. As previously described, the second amended complaint is also devoid
of any allegations that the unnamed defendants had any knowledge of the protected First
Amendment activity. Accordingly, the conspiracy claim will be dismissed without prejudice for
failure to state a claim upon which relief may be granted.
D. Temporary Restraining Order
Plaintiff has also requested a temporary restraining order. More specifically, plaintiff
“requests that the court issue an [sic] temporary restraining order against the United States
Probation Department, its officers and/or agents including Tracy Kosmas from committing acts
of retaliation as part of the pattern of causal link already established by the agencies of the
United States while Plaintiff has been under service of a criminal justice sentence, i.e.,
imprisonment and now supervised release.” (Dkt. No. 10-2 at p. 12.)
To secure the extraordinary relief of a temporary restraining order (“TRO”), a petitioner
must demonstrate that “‘he is likely to succeed on the merits; (2) denial will result in irreparable
harm; (3) granting the injunction will not result in irreparable harm to the defendants; and (4)
granting the injunction is in the public interest.’” Barber v. Sharp, No. 10-5286, 2011 WL
2223651, at *15 (D.N.J. June 2, 2011) (citing Maldonaldo v. Houston, 157 F.3d 179, 184; Ballas
v. Tedesco, 41 F. Supp. 2d 531, 537 (D.N.J. 1999)). A plaintiff “must establish that all four
factors favor preliminary relief.” Barber, 2011 WL 2223651, at *15 (citing Opticians Ass’n of
Am. v. Indep. Opticians of Am., 920 F.2d 187 (3d Cir. 1990)).
Plaintiff’s request for a TRO will be denied. The complaint is devoid of any allegations
against the Probation Department and Tracy Kosmas or how they are purportedly retaliating
against plaintiff. Instead, the retaliation allegations were solely related to the period of time that
plaintiff was in federal incarceration. As previously stated, plaintiff is no longer in federal

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incarceration. Therefore, he fails to show how he is entitled to a TRO against the Probation
Department and Kosmas.
V.

CONCLUSION

For the foregoing reasons, plaintiff’s retaliation claim will be permitted to proceed
against Zickefoose only. Plaintiff’s access to courts and conspiracy claims will be denied
without prejudice. His request for a TRO will also be denied. An appropriate order will be
entered.

DATED: April 10, 2015
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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