FARUQ v. MCCOLLUM et al
Filing
5
OPINION. Signed by Chief Judge Jerome B. Simandle on 10/18/2012. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KARIM FARUQ,
Plaintiff,
v.
MARY MCCOLLUM, et al.,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
Civil No. 11-5987 (JBS)
OPINION
APPEARANCES:
KARIM FARUQ, Plaintiff pro se
Reg. No. # 27350-037
FCI Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
SIMANDLE, Chief Judge
Plaintiff, Karim Faruq, a federal inmate confined at the FCI
Fort Dix in Fort Dix, New Jersey, at the time he submitted the
above-captioned Complaint for filing, brings this action pursuant
to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
Accordingly, this Court must
review the Complaint, pursuant to 28 U.S.C. § 1915A, to determine
whether the Complaint 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.
For the reasons set forth below, the
Court concludes that this action should be dismissed.
I.
BACKGROUND
Plaintiff, Karim Faruq, brings this civil rights action
against the following defendants: Mary McCollum, Case Manager at
FCI Fort Dix; D. Schaaf, Unit Manager at FCI Fort Dix; and Robert
Donahue, Case Manager Coordinator at FCI Fort Dix.
Caption and § Defendants).
(Complaint,
The following factual allegations by
plaintiff are taken from the Complaint, and are accepted for
purposes of this screening only.
Plaintiff alleges, in 1990, he was charged and ultimately
convicted in the United States District Court for the District of
Maryland with conspiracy to distribute and possess with intent to
distribute heroin and cocaine, in violation of 21 U.S.C. § 846;
income tax evasion, in violation of 21 U.S.C. § 7201; money
laundering and aiding and abetting, in violation of 18 U.S.C. §
1956(a)(1)(B)(1) and 18 U.S.C. § 2; and distribution of a mixture
containing heroin, in violation of 21 U.S.C. § 841(a).
He was
sentenced to serve 385 months in federal prison to be followed by
five years supervised release.
In 1994, Plaintiff was initially designated to United States
Penitentiary (“USP”) Terre Haute in Indiana, and then transferred
to USP Allenwood, Pennsylvania.
Plaintiff states that he was
scored as “high severity” at his first custody classification.
In 1996, Plaintiff was transferred to Federal Correctional
Institution (“FCI”) Cumberland, Maryland.
In 2000, Plaintiff’s
custody classification was reduced to moderate severity and he
2
was transferred to FCI Fort Dix in New Jersey.
At FCI Fort Dix,
a Management Variable was placed on Plaintiff for greater
security because his custody points were five, which is minimum
security level, but Plaintiff had more than ten years remaining
on his sentence.
Plaintiff alleges that the entire time he was confined at
FCI Fort Dix, his offense level remained as moderate severity at
his custody classification reviews.
In December 2009, Plaintiff
allegedly became eligible for a transfer to a minimum security
facility “camp.”
Accordingly, Plaintiff submitted requests to
McCollum, Schaaf and Donahue for transfer to a minimum security
camp facility under the Federal Bureau of Prisons (“BOP”) Program
Statement (“PS”) 5100.08 and 18 U.S.C. § 3621(b).
In February 2010, Schaaf told Plaintiff that he had
instructed McCollum to process Plaintiff’s paperwork for a
transfer to a minimum security camp.
Several months later, in
April 2010, McCollum summoned Plaintiff to her office to question
Plaintiff’s prior custody classification reviews and his
motivation for complaining to McCollum’s supervisors, Schaaf and
Donahue.
In May 2010, McCollum raised Plaintiff’s offense level
from moderate severity to greatest severity and reinstated a
“PSF” that had earlier been removed from Plaintiff’s
classification before McCollum had become Plaintiff’s case
manager.
3
Plaintiff alleges that McCollum’s actions in raising his
custody classification level and adding a PSF were malicious and
intentional retaliation against Plaintiff for having complained
to Schaaf and Donahue.
He also alleges that McCollum’s actions
constituted unlawful “selective treatment” because Plaintiff is
an African American and Muslim.
Plaintiff has written to his U.S
Senator and Congressman to complain about this treatment.
Plaintiff further alleges that after he told Schaaf and
Donahue about McCollum’s actions and that Plaintiff intended to
file an administrative remedy, they became hostile and conspired
with each other to “uphold the raised offense level to prevent
[Plaintiff’s] transfer to a lower-security facility."
Plaintiff seeks a declaratory judgment that defendants have
violated his First Amendment rights and his right to equal
protection under the Fifth Amendment.
He also seeks compensatory
and punitive damages in excess of $70,000.00.
On or about April 24, 2012, Plaintiff filed an amended
Complaint to this action.
(Docket entry no. 3).
In his amended
Complaint, Plaintiff adds general allegations that defendants
McCollum, Schaaf and Donahue have continued a pattern of
discrimination and retaliation against him on the basis of race,
color and religion because Plaintiff has engaged in the
constitutionally protected activity of filing administrative
grievances and writing to his U.S. Senator and Congressional
representative.
He alleges that defendants have intentionally
4
identified Plaintiff as a leader and organizer of a drug
organization so as to deny his transfer to a minimum security
facility.
Plaintiff alleges that he was not a leader and
organizer of a drug ring, but rather a wholesaler which does not
meet the PSF greatest severity criteria.
This Court takes judicial notice of Plaintiff’s earlier
habeas action, Faruq v. Zickefoose, Civil No. 10-6768 (NLH),
which was dismissed on October 3, 2011, shortly before Plaintiff
filed this action.
Plaintiff’s earlier action involved a
challenge as to the custody classification level issue raised in
the instant action.
While the Court had dismissed the habeas
action for lack of jurisdiction, finding that it was more
appropriately a declaratory judgment action or civil rights
action under Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), the administrative record
pertaining to this claim was provided and proves relevant to the
instant action.
Accordingly, the record will be incorporated in
this action for purposes of reviewing Plaintiff’s claims.
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),
requires a district court to review a complaint in a civil action
in which a prisoner is proceeding in forma pauperis or seeks
redress against a governmental employee or entity.
The Court is
required to identify cognizable claims and to sua sponte dismiss
5
any claim that is frivolous, 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.
1915(e)(2)(B) and 1915A.
28 U.S.C. §§
This action is subject to sua sponte
screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) an
§ 1915A.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Supreme Court refined the standard for summary dismissal
of a complaint that fails to state a claim in Ashcroft v. Iqbal,
556 U.S. 662 (2009).
The Court examined Rule 8(a)(2) of the
Federal Rules of Civil Procedure which provides that a complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2).
Citing its opinion in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) for the proposition that “[a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do,’”
Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555), the Supreme Court held
that, to prevent a summary dismissal, a civil complaint must now
allege “sufficient factual matter” to show that the claim is
facially plausible.
This then “allows the court to draw the
6
reasonable inference that the defendant is liable for the
misconduct alleged.”
Fowler v. UPMC Shadyside, 578 F.3d 203 (3d
Cir. 2009)(citing Iqbal, 556 U.S. at 676).
The Supreme Court’s
ruling in Iqbal emphasizes that a plaintiff must demonstrate that
the allegations of his complaint are plausible.
See id. at 678-
79; see also Twombly, 505 U.S. at 555, & n. 3; Warren Gen. Hosp.
v.. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011).
“A complaint
must do more than allege the plaintiff’s entitlement to relief.
A complaint has to ‘show’ such an entitlement with its facts.”
Fowler, 578 F.3d at 211 (citing Phillips v. County of Allegheny,
515 F.3d 224, 234–35 (3d Cir. 2008).
See also Argueta v. .S
Immigration & Customs Enforcement, 643 F.3d 60, 73 (3d Cir.
2011); Bistrian v. Levi, __ F.3d __, 2012 WL 4335958, *8 (3d Cir.
Sept. 24, 2012)(allegations that are no more than conclusions are
not entitled to the assumption of truth; a court should “look for
well-pled factual allegations, assume their veracity, and then
‘determine whether they plausibly give rise to an entitlement to
relief.’”)(quoting, Iqbal, 556 U.S. at 679).
III.
A.
ANALYSIS
Equal Protection Claim
Plaintiff asserts that defendants' conduct in revising and
increasing his custody classification level violated his right to
equal protection of the law as guaranteed under the Fifth
Amendment.
He generally alleges that defendants have continued a
pattern of discrimination and retaliation against him on the
7
basis of race, color and religion because Plaintiff has engaged
in the constitutionally protected activity of filing
administrative grievances and writing to his U.S. Senator and
Congressional representative.
The concept of equal protection, as embodied in the Due
Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347
U.S. 497 (1954), has been construed to implicitly include an
equal protection guaranty generally as broad as that of the
Fourteenth Amendment, applicable to the states.
See United
States v. Milan, 304 F.3d 273, 281 n. 6 (3d Cir. 2002)(citing
United States v. Leslie, 813 F.2d 658 (5th Cir. 1987)), cert.
denied, 538 U.S. 1024 (2003).
“The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its
jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated
should be treated alike.”
City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 439 (1985)(citing Plyler v. Doe, 457 U.S.
202, 216 (1982)).
Thus, to state a claim under the Equal
Protection Clause, a litigant must allege that: (a) he is a
member of a protected class; and (b) he was treated differently
from similarly situated inmates.
See City of Cleburne, 473 U.S.
at 439; Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003);
Jean-Pierre v. Bureau of Prisons, 2012 WL 4076113 at *4 (3d Cir.
Sept. 18, 2012).
If the litigant does not claim membership in a
8
protected class, he must allege arbitrary and intentional
discrimination in order to state an equal protection claim.
See
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Specifically, he must state facts showing that: “(1) the
defendant[s] treated him differently from others similarly
situated, (2) the defendant[s] did so intentionally, and (3)
there was no rational basis for the difference in treatment.”
Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).
Here, Plaintiff alleges generally that defendants are
discriminating against him based on race and religion.
However,
he has made no allegations that he was treated differently than
others that are similarly situated.1
Accordingly, Plaintiff has
failed to plead a facially plausible equal protection claim.
See
City of Cleburne, 473 U.S. at 439; Village of Willowbrook, 528
U.S. at 564.
Proof of disparate impact alone, however, is not sufficient
to succeed on an equal protection claim; a plaintiff also must
prove that the defendant intended to discriminate.
See Village
of Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 264–66 (1977); Washington v. Davis, 426 U.S. 229,
1
Furthermore, as discussed in Part III.B, below, the record
shows ample justification for the decision to elevate Plaintiff's
classification to Greatest Public Safety Factor based on
Plaintiff's crime of conviction and his leadership role in it.
Plaintiff does not allege any grounds for asserting that this
classification decision was different from others who are
similarly situated. Thus, his equal protection claim is
deficient.
9
242, 244–45 (1976).
Thus, discriminatory intent must be a
motivating factor in the decision, even though it need not be the
sole motivating factor.
See Village of Arlington Heights, 429
U.S. at 265–66.
Once this intentional disparity in treatment is shown, a
court will proceed to determine whether the disparity can be
justified under the requisite level of scrutiny.
See City of
Cleburne, 473 U.S. at 439–40; Plyler, 457 U.S. at 216–17.
In
testing the validity of an official action that is alleged to
deny equal protection, the action “is presumed to be valid and
will be sustained if the classification drawn by the statute is
rationally related to a legitimate state interest.”
Cleburne, 473 U.S. at 439–40.
City of
The general rule gives way,
however, when a statute classifies by race, alienage or national
origin since these classifications “are subjected to strict
scrutiny and will be sustained only if they are suitably tailored
to serve a compelling state interest.”
Id. at 440.
It is not clear what “pattern of discrimination” Plaintiff
was subjected to by defendants.
Plaintiff references that his
custody classification level changed in May 2010, after Plaintiff
had asked to be transferred to a minimum security camp.
Plaintiff alleges that this action by defendants was malicious,
intentional and motivated by Plaintiff’s attempts to file
administrative remedies to correct the problem and by writing to
his Senate and Congressional representatives.
10
This conclusory
statement is not sufficient to state a claim, as required by
Iqbal.
See Iqbal, 556 U.S. at 679.
Accordingly, this equal
protection claim will be dismissed without prejudice.
However,
if Plaintiff believes that he can assert sufficient plausible
facts to show an equal protection violation, then he may move for
leave to file an amended complaint accordingly.2
B.
Retaliation
Next, Plaintiff asserts a First Amendment retaliation claim
by alleging that defendants changed his custody classification
level solely in retaliation against Plaintiff for filing
administrative grievances and writing letters to his Senate and
Congressional representatives to remedy the problem.
“Retaliation for the exercise of constitutionally protected
rights is itself a violation of rights secured by the
Constitution ... .”
White v. Napoleon, 897 F.2d 103, 111-12 (3d
Cir. 1990); see also Bistrian, 2012 WL 4335958 at *18; Mitchell
v. Horn, 318 F.3d 523, 529-31 (3d Cir. 2003); Rauser v. Horn, 241
F.3d 330, 333-34 (3d Cir. 2001); Allah v. Seiverling, 229 F.3d
220, 224-26 (3 Cir. 2000).
To prevail on a retaliation claim,
2
Plaintiff should note that when an amended complaint is
filed, the original complaint no longer performs any function in
the case and “cannot be utilized to cure defects in the amended
[complaint], unless the relevant portion is specifically
incorporated in the new [complaint].” 6 Wright, Miller & Kane,
Federal Practice and Procedure § 1476 (2d ed.1990)(footnotes
omitted). An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
explicit. Id. To avoid confusion, the safer course is to file
an amended complaint that is complete in itself. Id.
11
plaintiff must demonstrate that (1) he engaged in
constitutionally-protected activity; (2) he suffered, at the
hands of a state actor, adverse action “sufficient to deter a
person of ordinary firmness from exercising his [constitutional]
rights;” and (3) the protected activity was a substantial or
motivating factor in the state actor’s decision to take adverse
action.
Rauser, 241 F.3d at 333 (3d Cir. 2001)(quoting Allah,
229 F.3d at 225.
In this case, Plaintiff can not demonstrate the third factor
necessary to support a retaliation claim.
As demonstrated in
Plaintiff’s earlier habeas action, Civil No. 10-6768 (NLH), there
was no suggestion that the increase in Plaintiff’s custody
classification level was due to any retaliation against Plaintiff
for having filed an administrative remedy.
In fact, the record
in that action shows that Plaintiff’s custody classification
level was changed before he filed his administrative remedy and
that it was based on information contained in Plaintiff’s
presentence report that apparently was overlooked by earlier
institutional staff where Plaintiff previously was incarcerated.
Indeed, in his administrative remedy, the change in Plaintiff’s
custody status was explained on August 9, 2010, by Warden Donna
Zickefoose as follows:
A review of this matter reveals you were originally scored
with a Greatest Severity as noted on your security
designation data form dated January 5, 1994. During your
most recent program review meeting, you requested placement
in a Minimum level facility. Your case manager reviewed
12
your central file materials to determine your
appropriateness and noticed your offense conduct behavior
met the criteria for Greatest Severity, not Moderate.
Specifically, your Presentence Investigation Report
identifies you as a leader or organizer of an organization
that included numerous individuals and was responsible for
distributing 3.71 kilograms of heroin and five kilograms of
cocaine. You organized and directed the organization, had
the greatest decision making authority and received the
largest share of the profits. While you claim you worked
for a high level supplier, the PSI is clear that your
organization received its drugs from a supplier and then
distributed those drugs for your organization’s benefit.
Program Statement 5100.08, Appendix A, page 1, and Appendix
A, page 5, dated September 12, 2006, are clear that your
role in the offense and the quantity of drugs involved are
best classified as Greatest. Although your severity was
reduced from Greatest to Moderate during your confinement at
USP Allenwood, Pennsylvania, it is unclear why that was done
and there is no documentation in your file to support the
reduction. Your offense severity is appropriately
classified as Greatest. Accordingly, your request is
denied.
See Faruq v. Zickefoose, Civil No. 10-6768 (NLH), October 3, 2011
Opinion, at pg. 4, (Docket entry no. 8).
Further, in Plaintiff’s Regional Administrative Remedy
Appeal, on September 17, 2010, the Regional Director’s response
showed that Plaintiff’s PSF and custody classification was based
on valid, verifiable information, as follows:
You appeal the response from the Warden at FCI Fort Dix
regarding the application of the Greatest Severity Public
Safety Factor (PSF). You contend you were not a
leader/organizer of the drug conspiracy. You further
contend this PSF was removed previously. As relief, you
request all staff who had access to your classification
materials be interviewed regarding this matter.
Program Statement 5100.08, Security Designation and Custody
Classification Manual, permits staff to use professional
judgment within specific guidelines in making classification
decisions. To accomplish this, staff must consider all
13
available information regarding the inmate to include
security/custody classification, release residence,
institution population levels, judicial recommendations,
safety concerns and any information provided by other law
enforcement agencies. The application of a PSF overrides
security point scores to ensure the appropriate security
level is assigned to an inmate, based on his or her
demonstrated current or past behavior.
Records indicate you are serving 385 months for a Narcotics
Conspiracy. Your Presentence Report (PSR) identifies you as
the organizer or leader in the instant offenses. The PSR
documents the amount of narcotics involved in the offenses
were converted into the marijuana equivalent and utilized
for computation purposes. Specifically, you are responsible
for 3,705 kilograms of marijuana equivalent. In conjunction
with your leadership role in the instant offenses, this
amount of narcotics requires the Greatest Severity PSF be
applied. Based on this information, you are appropriately
assigned the Greatest Severity PSF and are inappropriate for
placement at a minimum security facility. Although you
contend this decision is erroneous, you have failed to
provide any evidence to support your claims. Accordingly,
your appeal is denied.
See Faruq v. Zickefoose, Civil No. 10-6768 (NLH), October 3, 2011
Opinion, at pg. 5, (Docket entry no. 8).
Therefore, Plaintiff can not demonstrate that defendants’
actions were purposeful retaliation against him for having filed
administrative grievances.
Rather, Plaintiff’s case manager,
defendant McCollum, actually reviewed Plaintiff’s central file
materials to determine his appropriateness for transfer to a
minimum security facility, as requested by Plaintiff, and noticed
from legitimate and objective records, namely, Plaintiff’s
presentence report, that his offense conduct behavior met the
criteria for Greatest Severity, not Moderate, and that there was
no explanation or documentation on file to support the earlier
reduction in custody classification level.
14
Accordingly, this
retaliation claim will be dismissed for failure to state a claim
upon which relief may be granted.
15
IV.
CONCLUSION
For the reasons set forth above, the Complaint will be
dismissed without prejudice, in its entirety, as against the
named defendants, pursuant to 28 U.S.C. § 1915A(b)(1), for
failure to state a claim at this time.
An appropriate order
follows.
s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:
October 18, 2012
16
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?