KITCHEN v. GRONDOLSKY et al
Filing
51
MEMORANDUM OPINION AND ORDER granting in part and denying in part Defts' 36 Motion to Dismiss. The constitutional claims against Defendants Jeff Grondolsky, Donna Zickefoose, Robert Donahue, and Kevin Bullock survive; all other claims are dismissed. Signed by Judge Joseph H. Rodriguez on 11/4/2013. (drw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_____________________________
JAMES MICHAEL KITCHEN,
Civil Action No. 11-5834
:
v.
Hon. Joseph H. Rodriguez
:
Plaintiff,
:
MEMORANDUM OPINION
& ORDER
JEFF GRONDOLSKY, et al.,
:
Defendants.
________________________________
:
This matter is before the Court on a Motion to Dismiss [36] filed by Defendants.
Oral argument on the motion was heard October 28, 2013, and the record of that
proceeding is incorporated here. The motion will be granted in part and denied in part.
Background
On January 31, 2006, Plaintiff James Michael Kitchen was sentenced to sixtythree months imprisonment by the United States District Court for the Southern District
of West Virginia. The Federal Bureau of Prisons determined that the Plaintiff was to be
incarcerated at Fort Dix Federal Correction Institution, in Fort Dix, New Jersey.
Some time thereafter, Plaintiff testified as a witness for the prosecution in a
federal trial. As a result of his cooperation, on June 15, 2007, the United States filed a
Rule 35(b) Motion with the United States District Court for the Southern District of
West Virginia requesting that the Plaintiff’s sentence be reduced. On or about February
1, 2008, the sentencing judge reduced Plaintiff’s sentence to forty-two months, with
credit for time served and otherwise leaving the original judgment in full force and
effect. The Judge’s Order specified, “The Clerk is directed to forward copies of this order
to the defendant, all counsel of record, the United States Probation Department, and the
United States Marshal.” United States v. Kitchen, Criminal Action No. 2:05-00156,
Document 43 (S.D.W.V. Feb. 1, 2008); Harvey Decl., ¶ 3, Ex. A.
The February 1, 2008 Order was stamped “Received” by the U.S. Marshal,
Charleston, West Virginia on February 1, 2008 at 4:45 p.m. Harvey Decl., ¶ 4, Ex. B.
Similarly, the February 1, 2008 Order was received by the United States Probation
Department, scanned and uploaded into a Probation database, and electronically
submitted to the United States Marshal for the Southern District of West Virginia on or
about February 5, 2008. Harvey Decl., ¶ 13, Ex. J.
On March 23, 2010, Plaintiff requested a transcript of proceedings from his
resentencing, at which he was represented by counsel but not present, and on April 2,
2010, Plaintiff filed a Petition for Writ of Habeas Corpus and a Motion to Appoint
Counsel in the District Court for the Southern District of West Virginia. 1 In what his
1
The Petition was filed by Plaintiff’s former criminal defense counsel, who wrote:
“In the past week, Kitchen was returned to this district to testify at the Lecco
retrial. Undersigned counsel was contacted by Assistant Federal Public Defender Amy
Austin and informed that Kitchen was at South Central Regional Jail and stated he
needed to see his former counsel.
Upon interview, counsel learned that Kitchen had never been released from
federal custody and remains in the custody of the Bureau of Prisons. Kitchen states that
he complained to his counselor at FCI Fort Dix, New Jersey, who told him there was
nothing he could do. Kitchen states that at the time he should have been released, he
had all the good time he had earned in three years incarceration. However, on February
18, 2010 he lost whatever good time he had accumulated.
Including the 157 day credit, but without allowing for good time, counsel’s
approximate calculation is that, Kitchen’s 42-month sentence concluded on or about
January 24, 2009. Therefore, it appears that Mr. Kitchen has been incarcerated for
more than 14 months longer than the Court’s sentence. He should be released
immediately.
Kitchen has requested, however, that the Court appoint a probation officer for
him and place him in a halfway house for four to six months. He points out that he has
been in federal prison in New Jersey for more than four years, he has lost contact with
his family, he has no place to live, and no way of earning a living. Because he was
transferred to West Virginia from Fort Dix, New Jersey, Kitchen also has no clothes
other than his prison jumpsuit, no personal belongings and no access to his prison
account.
Counsel moves the Court to accommodate Mr. Kitchen’s request, insofar as it is
possible. Counsel also moves the Court to reduce Kitchen’s term of supervised release
and cancel the remainder of the $1000 fine currently imposed as equitable relief for the
harms Mr. Kitchen has suffered by his loss of liberty.”
2
counsel characterized as “an emergency petition,” United States v. Kitchen, Criminal
Action No. 2:05-00156, Document 57 (S.D.W.V. Aug. 17, 2010), Plaintiff alleged that he
had been wrongfully incarcerated for the previous fourteen months. Plaintiff was
released from custody on April 7, 2010, and a probation officer was appointed to oversee
his supervised release. United States v. Kitchen, Criminal Action No. 2:05-00156,
Document 59 (S.D.W.V. Sept. 30, 2010); Moran Decl., ¶ 2, Ex. 1.
In its August 10, 2010 Response to the Plaintiff’s Petition for Writ of Habeas
Corpus, the United States admitted that the Plaintiff “was imprisoned beyond his lawful
release date.” United States v. Kitchen, Criminal Action No. 2:05-00156, Document 56
(S.D.W.V. Aug. 10, 2010). The Government also acknowledged, “[Plaintiff’s] 42-month
sentence of imprisonment, calculated from the original sentencing date of January 31,
2006, while giving credit for 157 days of prior custody and approximately 164 days of
good conduct time, yields a release date in September 2008. Kitchen, however,
continued to be incarcerated at the Federal Correctional Institution, Fort Dix, New
Jersey, past September 2008 and into 2010. He was not released by the Bureau of
Prisons until April 7, 2010, when he began serving his three-year term of supervised
release in Charleston, West Virginia.” Id.
On September 30, 2010, Plaintiff’s sentencing judge dismissed Plaintiff’s habeas
corpus Petition as moot, stating:
The court contacted the United States Marshal’s office and, upon investigation, it
was learned that the defendant was indeed eligible for release. The defendant was
released from prison on April 7, 2010. The defendant also requested in his
petition that the court assign a probation officer to his case, place the defendant
in a halfway house, reduce his term of supervised release and cancel the
remainder of the $1,000 fine imposed as equitable relief for the harms he
suffered by loss of his liberty.
United States v. Kitchen, Criminal Action No. 2:05-00156, Document 46 (S.D.W.V. Apr.
2, 2010).
3
On August 10, 2010, the government filed the United States Response to
James Michael Kitchen’s Petition for Writ of Habeas Corpus, by its counsel,
Philip H. Wright, Assistant United States Attorney, stating that the petition
should be dismissed inasmuch as the defendant was released from prison on
April 7, 2010, that any monetary relief that may be due the defendant because of
excess prison time, including his request that the fine be cancelled, should be
determined pursuant to an administrative tort proceeding and suggesting that
the defendant may seek to modify, reduce or request early termination of his
term of supervised release.
On August 17, 2010, the defendant filed Petitioner’s Reply to the United
States’ Response to Petition for Writ of Habeas Corpus, wherein he informs the
court that since his release from incarceration a probation officer has been
appointed to oversee his supervised release, fulfilling his request for immediate
release and aid in rejoining society. The defendant also informs the court that,
regarding the other issues raised in the petition, he is represented by other
counsel and that a federal tort claim has been filed (administratively, according
to the government) on his behalf.
United States v. Kitchen, Criminal Action No. 2:05-00156, Document 59 (S.D.W.V. Sept.
30, 2010).
On or about July 16, 2010, Plaintiff had filed an administrative tort claim, form
SF-95 entitled “Claim for Damage, Injury, or Death,” with the Northeast Regional Office
of the Federal Bureau of Prisons alleging that he had served 595 days “unnecessarily in
the custody of the United States,” and seeking $1.5 million in damages. Moran Decl., ¶
3, Ex. 2. The BOP denied Plaintiff’s claim by letter dated January 11, 2011, stating
“[a]fter careful review of this claim, and in consultation with the United States Marshal
Service . . . [t]here is no evidence to suggest . . . negligence on the part of an employee of
the Department of Justice.” Moran Decl., ¶ 4, Ex. 3.
Plaintiff originated this case on October 6, 2011 by filing a Complaint against two
Wardens of Fort Dix Federal Correction Institution, Jeff Grondolsky and Donna
Zickefoose, and Robert Donahue, Plaintiff’s Case Management Coordinator at Fort Dix.
The Complaint was amended on October 12, 2011 to add Plaintiff’s Case Manager, Kevin
Bullock, as a Defendant. Plaintiff has alleged that the individual Warden Defendants
knew that Plaintiff’s sentence had been reduced and that he was to have been released
4
on or about September 12, 2008, but they failed to release him. He further asserts that
the Case Management Coordinator was responsible for overseeing issues related to
Plaintiff’s incarceration but ignored Plaintiff’s multiple complaints that he was being
held unlawfully beyond his release date, as did Plaintiff’s Case Manager.
The parties have informed the Court that on or about April 7, 2012, Plaintiff
mailed three Form SF-95s: one each to the United States Parole Commission, the U.S.
Marshal Service, and the Administrative Office of the United States Courts. See Harvey
Cert. in Support of Mot. to Amend [Doc. 13] at Ex. F. The administrative claims against
the Administrative Office and the Parole Commission each alleged that “the Clerk of the
Court and/or the United States Probation Service failed to fulfill the mandate in [the
sentencing judge’s February 1, 2008] order that caused Mr. Kitchen to lose his freedom
for at least 573 days.” Id. The SF-95 filed with the USMS alleged that “the U.S.
Marshals Service was responsible for releasing Mr. Kitchen on 9/12/08 but due to its
negligence Mr. Kitchen remained incarcerated for an additional 573 days.” Id.
Neither the AO nor the Parole Commission responded to Plaintiff’s SF-95 within
six months. See Harvey Suppl. Cert. in Support of Mot. to Amend [Doc. 28] at ¶ 3. The
USMS, however, responded in a letter dated October 2, 2012 which stated that Plaintiff’s
administrative tort claim had been “previously denied” by the BOP “after consultation
with the USMS” and “the determination on [Plaintiff’s] claim by the BOP, on behalf of
the United States, [received by Plaintiff’s counsel on February 7, 2011] was final and
conclusive.” Id. at Ex. A.
On December 19, 2012, after obtaining leave of Court, Plaintiff filed a Second
Amended Complaint, naming as additional Defendants: (1) Teresa L. Deppner, Clerk of
the United States District Court for the Southern District of West Virginia, for the
alleged failure to notify the United States Probation Department and the United States
5
Marshals Service of the reduction of Plaintiff’s sentence, and (2) the United States,
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1) and § 2671, for
the alleged negligence of the Administrative Office of the United States Judiciary in
failing to mail the Order reducing Plaintiff’s sentence, United States Parole Commission
for failure to monitor the Bureau of Prisons, United States Marshals Service in failing to
notify the Bureau of Prisons of the sentence reduction, and the Bureau of Prisons itself.
See December 17, 2012 Order Granting Plaintiff’s Motion to Amend [Doc. No. 30]; Pl.
Opp’n Br. [Doc. No. 44] at 18.
Defendants have filed a Motion to Dismiss the Second Amended Complaint
pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(2), and 12(b)(6). Plaintiff opposes the Motion.
Applicable Standards
Federal Rule of Civil Procedure 12 governs a court’s decision to dismiss a claim
based on the pleadings. See Fed. R. Civ. P. 12. More specifically, Federal Rule of Civil
Procedure 12(b)(1) governs a court’s decision to dismiss a claim for “lack of subject
matter jurisdiction” and Federal Rule of Civil Procedure 12(b)(6) governs a court’s
decision to dismiss a claim for failure to state a claim upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(b)(6).
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) permits a court to dismiss a case for lack
of subject matter jurisdiction. A defendant may contest subject matter jurisdiction by
attacking the face of the complaint (i.e., a facial attack) or by attacking “the existence of
subject matter jurisdiction in fact, quite apart from any pleadings” (i.e., a factual attack).
Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977); Schwartz v.
Medicare, 832 F. Supp. 782, 787 (D.N.J. 1993); Donio v. United States, 746 F. Supp.
500, 504 (D.N.J. 1990). A facial attack “contest[s] the sufficiency of the pleadings.”
6
Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (citation
omitted). On a facial attack, the court must read the complaint in the light most
favorable to the plaintiff and consider the allegations of the complaint as true.
Mortensen, 549 F.2d at 891.
Under a factual attack, a court is not confined to the pleadings but may weigh and
consider evidence outside the pleadings, including affidavits, depositions, and exhibits
to satisfy itself that it has jurisdiction. Id.; Gould Elecs., Inc. v. United States, 220 F.3d
169, 178 (3d Cir. 2000); Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997) (stating
that court can consider affidavits, depositions, and testimony to resolve factual issues
bearing on jurisdiction). This is because on a factual motion to dismiss for lack of
subject matter jurisdiction, the court’s very power to hear the case is at issue.
Mortensen, 549 F.2d at 891; Gotha, 115 F.3d at 179. Moreover, on a factual attack, no
presumptive truthfulness attaches to a plaintiff’s allegations, and the existence of
disputed material facts will not preclude the trial court from evaluating for itself the
merits of the jurisdictional claim. Mortensen, 549 F.2d at 891.
Regardless of which approach is used, a plaintiff has the burden of proving that
jurisdiction exists. Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009) (citing
Carpet Grp. Int’l v. Oriental Rug Importers Ass’n, 227 F.3d 62, 69 (3d Cir. 2000));
Mortensen, 549 F.2d at 891. “The court may dismiss the complaint only if it appears to
a certainty that the plaintiff will not be able to assert a colorable claim of subject matter
jurisdiction.” Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 438 (D.N.J. 1999)
(citations omitted).
If the court finds that it lacks subject matter jurisdiction, it must dismiss the
action under Rule 12(h)(3). See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
7
B. Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a
claim based on “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged
facts, taken as true, fail to state a claim. Fed. R. Civ. P. 12(b)(6). When deciding a
motion to dismiss pursuant to Rule 12(b)(6), ordinarily only the allegations in the
complaint, matters of public record, orders, and exhibits attached to the complaint, are
taken into consideration. 1 See Chester County Intermediate Unit v. Pa. Blue Shield, 896
F.2d 808, 812 (3d Cir. 1990). It is not necessary for the plaintiff to plead evidence.
Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the
Court is not whether the plaintiff will ultimately prevail. Watson v. Abington Twp., 478
F.3d 144, 150 (2007). Instead, the Court simply asks whether the plaintiff has
articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility 2 when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556). “Where there are well-pleaded factual allegations, a court should assume
1
“Although a district court may not consider matters extraneous to the pleadings,
a document integral to or explicitly relied upon in the complaint may be considered
without converting the motion to dismiss into one for summary judgment.” U.S.
Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (internal quotation
marks and citations omitted) (emphasis deleted).
2
This plausibility standard requires more than a mere possibility that unlawful
conduct has occurred. “When a complaint pleads facts that are ‘merely consistent with’
a defendant’s liability, it ‘stops short of the line between possibility and plausibility of
‘entitlement to relief.’’” Id.
8
their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Iqbal, 556 U.S. at 679.
The Court need not accept “‘unsupported conclusions and unwarranted
inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation omitted),
however, and “[l]egal conclusions made in the guise of factual allegations . . . are given
no presumption of truthfulness.” Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 607,
609 (D.N.J. 2006) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter
v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347,
351 (3d Cir. 2005) (“[A] court need not credit either ‘bald assertions’ or ‘legal
conclusions’ in a complaint when deciding a motion to dismiss.”)). Accord Iqbal, 556
U.S. at 678-80 (finding that pleadings that are no more than conclusions are not
entitled to the assumption of truth).
Further, although “detailed factual allegations” are not necessary, “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of a cause of action’s elements will not do.”
Twombly, 550 U.S. at 555 (internal citations omitted). See also Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
Thus, a motion to dismiss should be granted unless the plaintiff’s factual
allegations are “enough to raise a right to relief above the speculative level on the
assumption that all of the complaint’s allegations are true (even if doubtful in fact).”
Twombly, 550 U.S. at 556 (internal citations omitted). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.’”
Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
9
Analysis
A. Negligence claims under the FTCA
The FTCA grants jurisdiction to the district courts, and waives federal sovereign
immunity over, “claims against the United States, for money damages . . . for injury or
loss of property . . . 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 occurred.” 28
U.S.C. § 1346(b)(1). “The FTCA precludes suit against the United States unless the
claimant has first presented the claim to the relevant Federal agency [within two years
of its accrual] and the claim has been finally denied. See 28 U.S.C. § 2675(a). The final
denial requirement is ‘jurisdictional and cannot be waived.’ Bialowas v. United States,
443 F.2d 1047, 1049 (3d Cir. 1971).” Lightfoot v. United States, 564 F.3d 625, 627 (3d
Cir. 2009). The failure of the agency to make a final disposition of a claim within six
months after it is filed may be deemed a final denial. See 28 U.S.C. § 2675(a). “After the
denial of an administrative claim, the claimant has two options: (1) he may file suit in
the District Court within six months of the denial pursuant to 28 U.S.C. § 2401(b); or (2)
he may file a request for reconsideration directly with the agency to which the claim was
originally made.” Lightfoot, 564 F.3d at 627.
Regarding any negligence claim couched in terms of false imprisonment, Plaintiff
acknowledges that such claim is time barred because it was not brought in this Court
within six months of the January 2011 denial by the Bureau of Prisons of the
administrative claim. See 28 U.S.C. § 2401(b).
Insofar as Plaintiff now asserts FTCA claims of negligence by the Administrative
Office, Marshals Service, or Parole Commission, those claims also are time barred.
10
Plaintiff states that the Administrative Office was negligent in breaching its nondiscretionary duty to serve Court orders on the appropriate parties, including Plaintiff.
The alleged breach of duty therefore occurred in February 2008 and Plaintiff was
injured when he was not released in September 2008. As such, the claim against the
Administrative Office is time-barred.
Regarding the negligence claims against the Marshals Service and Parole
Commission, Plaintiff contends that the first time he knew or should have known that he
had been injured by those entities was when he was served with Initial Disclosures on
April 6, 2012, because that is when he discovered that those Defendants “breached the
duty owed to forward the reduction in sentence Order to the BOP [Marshal Service] or
to monitor the prisoner’s release dates [Parole Commission].” (Pl. Br., p. 14, 18.) Even
if the Court applies the discovery rule, Plaintiff’s negligence claims are outside the
statute of limitations. Plaintiff certainly was aware of his injury by April 2, 2010 when
he filed the habeas corpus Petition, but he did not bring the administrative claims
against the Administrative Office, Marshals Service, or Parole Commission until April 7,
2012.
Beside arguing the discovery exception, Plaintiff also contends that the
continuing violations doctrine should apply to permit an equitable exception to the
statute of limitations. The continuing violations doctrine is inapplicable to Plaintiff’s
claims, however, as he actually is arguing that he continued to be injured by each of
Defendants’ single instances of negligence, which occurred in 2008. Accordingly, the
FTCA precludes Plaintiff’s negligence claims against the United States because he failed
to present those claims to the relevant Federal agencies within two years of their
accrual.
11
B. Constitutional claims under Bivens v. Six Unknown Fed’l Narcotics Agents,
403 U.S. 388 (1971).
Subjecting a prisoner to detention beyond the termination of his sentence has
been held to violate the Eighth Amendment’s proscription against cruel and usual
punishment. Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989) (finding a constitutional
violation occurred when an inmate was imprisoned nine months and eight days after the
expiration of his sentence). See also Alston v. Read, 678 F. Supp. 2d 1061 (D. Hawaii
2010) (reversed and remanded on other grounds) (145 day overstay sufficient to state
Eighth Amendment claim); Shorts v. Bartholomew, No. 06–5877, 2007 WL 3037268
(6th Cir. Oct. 17, 2007) (plaintiff stated Eighth Amendment claim where he was held for
218 days beyond expiration of sentence); Campbell v. Ill. Dept. of Corr., 907 F.Supp.1173
(N.D.Ill.1995) (same where plaintiff was incarcerated for two years beyond end of
sentence).
To establish liability for incarceration without penological justification, a plaintiff
must demonstrate three elements: (1) a prison official had knowledge of the prisoner’s
problem and thus of the risk that unwarranted punishment was being, or would be,
inflicted; (2) the official either failed to act or took only ineffectual action under the
circumstances, indicating that his response to the problem was a product of deliberate
indifference to the prisoner’s plight; and (3) a causal connection between the official’s
response to the problem and the unjustified detention. Sample, 885 F.2d at 1110. See
also Montanez v. Thompson, 603 F.3d 243, 252 (3d. Cir. 2010).
“[D]eliberate indifference has been demonstrated in those cases where prison
officials were put on notice and then simply refused to investigate a prisoner’s claim of
sentence miscalculation.” Moore v. Tartler, 986 F.2d 682, 686 (3d Cir. 1993). Among
the circumstances relevant to a determination of whether deliberate indifference is
12
present are the scope of the official’s duties and the role the official played in the
everyday life of the prison as “not every official who is aware of a problem exhibits
deliberate indifference by failing to resolve it.” Sample, 885 F.2d at 1110. However, “if a
prison official knows that, given his or her job description or the role he or she has
assumed in the administration of the prison, a sentence calculation problem will not
likely be resolved unless he or she addresses it or refers it to others, it is far more likely
that” the prison official acted with deliberate indifference. Id. The crux of the deliberate
indifference inquiry is whether the defendant had a duty to investigate and unravel the
sentencing problems, not whether the defendant had the primary ability to resolve the
problem. Id. at 1112. While a “defendant in a civil rights action must have personal
involvement in the alleged wrongdoing . . . [p]ersonal involvement can be shown
through allegations of personal direction or of actual knowledge and acquiescence.”
Evancho v. Fisher, 423 F.3d 347 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988)).
In this case, Plaintiff has alleged that he complained repeatedly to Defendants
Donahue and Bullock and they and Defendants Grondolsky and Zickefoose knew that
Plaintiff was being held in excess of his legal sentence but did nothing, resulting in
Plaintiff serving an extra 573 days. At this point in the litigation, the allegations in the
Second Amended Complaint are sufficient for Plaintiff’s Bivens claim against the four
Fort Dix FCI Defendants to survive the instant motion to dismiss.
As to the claim against Deppner, as discussed during oral argument, negligence
claims are not cognizable under Bivens. The sole allegation against Deppner is an
assumption that she failed to notify the United States Probation Service and the United
13
States Marshals Service that Plaintiff’s sentence had been reduced. 2 See Second Am.
Compl. ¶ 25. Despite Plaintiff’s argument in attempt to impute willfulness onto
Deppner merely by characterizing her alleged inaction as such, because there is no
allegation or indication of an intentional constitutional violation, the claim against
Deppner must be dismissed.
Conclusion
For these reasons, as well as those discussed on the record during oral argument,
IT IS ORDERED on this 4th day of December, 2013 that Defendants’ Motion to
Dismiss [36] is hereby GRANTED IN PART and DENIED IN PART.
The constitutional claims against Defendants Jeff Grondolsky, Donna Zickefoose,
Robert Donahue, and Kevin Bullock survive; all other claims are dismissed.
/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.
2
Through briefing, however, Plaintiff acknowledges that he was the only one
allegedly not served with the Order. (Pl. Br., p. 19.) As outlined above, the record before
the Court indicates that the Probation Department and the Marshals Service did receive
the February 2008 Order.
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?