FARUQ v. MCCOLLUM et al
Filing
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OPINION. Signed by Chief Judge Jerome B. Simandle on 6/25/2013. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KARIM FARUQ,
Plaintiff,
v.
MARY MCCOLLUM, et al.,
Defendants.
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Civil Action 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, submitted a motion to reopen his case and file another amended Complaint (See Dkt. # 6)
in the above-captioned matter, in response to this Court’s
October 18, 2012 Opinion and Order that had dismissed without
prejudice Plaintiff’s civil action, pursuant to 28 U.S.C. §
1915A(b)(1), for failure to state a claim.
(See Dkt. ## 4, 5.)
The Court directs the Clerk of the Court to re-open this case to
allow for review of Plaintiff’s new amended 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 defendant who is immune from such relief.
For the reasons set forth below, the Court concludes that the
amended Complaint should be dismissed at this time.
I.
BACKGROUND
In his initial Complaint, Plaintiff alleges that he became
eligible for a transfer to a minimum security facility “camp” in
December 2009.
At that time, Plaintiff submitted requests to
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, 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).
Thereafter, in February 2010, Defendant Schaaf
allegedly told Plaintiff that he had instructed Defendant
McCollum to process Plaintiff’s paperwork for a transfer to a
minimum security camp.
Several months later, in April 2010, McCollum allegedly
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.
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Then, 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.
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 wrote 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.”
On April 24, 2012, Plaintiff filed an amended Complaint to
this action.
(Dkt. # 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 had engaged in the constitutionally protected
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activity of filing administrative grievances and writing to his
U.S. Senator and Congressional representative.
He alleges that
Defendants have intentionally 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.
In screening both the Complaint and amended Complaint under
28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the Court took 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 habeas action involved a challenge to his
custody classification level as 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
Plaintiff’s claim herein was provided and deemed relevant to the
instant action.
Accordingly, this Court incorporated the
record from the habeas action for purposes of reviewing
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Plaintiff’s claims.
(See Dkt. # 5, October 18, 2012 Opinion at
5.)
With regard to Plaintiff’s equal protection claim, this
Court found that Plaintiff’s allegations were conclusory under
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and dismissed the
claim without prejudice to Plaintiff filing an amended Complaint
with sufficient plausible facts to support an equal protection
claim.
(Dkt. # 5, Oct. 18, 2012 Op. at 10-11.)
As to
Plaintiff’s retaliation claim, the Court dismissed the claim
because Plaintiff did not allege facts to show that Defendants’
actions were purposeful retaliation against him for having filed
administrative grievances.
Relying on the administrative record
provided in Faruq v. Zickefoose, Civil No. 10-6768 (NLH), this
Court found that Defendant McCollum had “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.”
(Dkt. # 5, Oct. 18, 2012 Op. at
14.)
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On November 8, 2012, Plaintiff filed a second amended
Complaint reasserting his equal protection claim against
Defendants, which is the subject of this motion to re-open his
case, and alleging new facts to support his claim of disparate
treatment.
(Dkt. # 6-1.)
For instance, Plaintiff now alleges
that, in April 2010, when he met with Defendant McCollum,
McCollum asked Plaintiff if he had any paperwork to confirm the
removal of his prior Public Safety Factor (“PSF”).
Plaintiff
responded that he did not have any paperwork, but told McCollum
that another inmate, Paul Winestock, #27813-037, was in a
similar situation and went to a minimum security facility
“camp.”1
(Id., ¶ 6.)
Plaintiff also alleges that in May 2010, McCollum told
Plaintiff that she raised his offense level and placed a PSF
against him for “going over her head.”
At that time, Plaintiff
allegedly explained to McCollum that his presentence report
identified Plaintiff’s conduct as a “wholesaler” and “not an
organizer/leader.”
(Id., ¶ 7.)
Plaintiff alleges that, in 1995, he and inmate Winestock were
housed at USP Allenwood together. That same year, a new policy
was implemented, which resulted in a special custody
classification team for inmates with certain leadership roles in
drug offenses. This team allegedly served to remove the PSF
from Plaintiff and other similarly situated inmate to conform to
the new policy, Bureau of Prisons (“BOP”) Policy Statement
5100.06. (Id., ¶ 9.)
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Plaintiff also alleges that he reminded Defendant Donahue
that inmate Winestock’s situation was similar to Plaintiff’s
case, and that Donahue had been “personally involved in
Winestock’s” transfer to a minimum security camp.
Plaintiff
also purportedly told Donahue that Winestock’s offense level was
never raised to “Greatest Severity” like Plaintiff.
Despite
this alleged comparison to Winestock, Donahue told Plaintiff
that he would adhere to McCollum’s decision and informed
Plaintiff that his administrative remedies would not alter
Donahue’s decision.
(Id., ¶ 8.)
II.
A.
STANDARD OF REVIEW
Standards for Sua Sponte Dismissal
The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-
134, §§ 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 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.
28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
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Accordingly, Plaintiff’s
second amended Complaint is subject to sua sponte screening for
dismissal under both 28 U.S.C. § 1915(e)(2)(B) and § 1915A.
Federal Rule of Civil Procedure 8(a)(2) provides that a
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
However, “a
pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To
prevent summary dismissal, the complaint must allege “sufficient
factual matter” to show that the claim is facially plausible
which “allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Fowler v.
UPMS Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (citation
omitted).
The Supreme Court’s ruling in Iqbal emphasizes that a
plaintiff must demonstrate that the allegations of the complaint
are plausible.
See Iqbal, 556 U.S. at 678–79; Warren Gen. Hosp.
v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011).
“A complaint
must do more than allege a plaintiff’s entitlement to relief.
complaint has to ‘show’ such an entitlement with its facts.”
Fowler, 578 F.3d at 211 (citation omitted).
Thus, factual
allegations must be more than speculative, but the pleading
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A
standard “is not akin to a ‘probability requirement.’”
Covington v. International Association of Approved Basketball
Officials, 710 F.3d 114, 118 (3d Cir. 2013) (quoting Iqbal, 556
U.S. at 678; Twombly, 550 U.S. at 556).
That said, in light of
the Plaintiff's pro se status, the Court liberally construes the
complaint in his favor.
See Erickson v. Pardus, 551 U.S. 89,
93–94 (2007); see also Liggon–Redding v. Estate of Sugarman, 659
F.3d 258, 265 (3d Cir. 2011) (“Pro se filings ... must be
liberally construed.”).
B.
Bivens Actions
Plaintiff brings this action pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
In Bivens, the Supreme Court created a federal
counterpart to the remedy created in 42 U.S.C. § 1983.
Id., 403
U.S. at 389; see also Egervary v. Young, 366 F.3d 238, 246 (3d
Cir. 2004) (stating that Bivens actions are the federal
counterpart to Section 1983).
In order to state a claim under
Bivens, a plaintiff must allege: (1) a deprivation of a right
secured by the Constitution and 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
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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., Civ. 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.”).
Under Bivens, “[g]overnment officials may not be held
liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.” Iqbal, 556 U.S. at 676.
III.
DISCUSSION
As recounted above, the Court had dismissed Plaintiff’s
Fifth Amendment equal protection claim because Plaintiff had not
supported his general claim with factual allegations that he
received treatment different than that received by other
similarly situated individuals.
See, e.g., Williams v. Morton,
343 F.3d 212, 221 (3d Cir. 2003).
Specifically, the Court
concluded that Plaintiff failed to state an equal protection
claim, as he did not allege facts that would give rise to a
plausible inference that the custody classification level change
made by Defendants upon Plaintiff’s request for minimum security
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“camp” placement was the result of purposeful discrimination.
See Iqbal, 556 U.S. at 680–82.
Plaintiff now submits another
amended Complaint with new allegations regarding two other
inmates at FCI Fort Dix, who allegedly were similarly situated
to Plaintiff, and had been treated differently with respect to a
lower security level designation for camp placement.2
“To prevail on an equal protection claim, a plaintiff must
present evidence that s/he has been treated differently from
persons who are similarly situated.”
Williams, 343 F.3d at 221;
see also Jean-Pierre v. Bureau of Prisons, 497 F. App’x 164, 168
(3d Cir. 2012).
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, 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.
Moreover,
It would appear that Plaintiff may be asserting a “class of
one” equal protection claim in accordance with Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000), which provides
for “a class of one claim where the plaintiff alleges that [he]
has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference
in the treatment.” Id.; Hill v. Borough of Kutztown, 455 F.3d
225, 239 (3d Cir.2006).
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to prove a lack of rational basis, a plaintiff must negate every
conceivable rational basis for his differential treatment. See
Board of Trustees v. Garrett, 531 U.S. 356, 367 (2001); Ramsgate
Court Townhome Ass’n v. West Chester Borough, 313 F.3d 157, 160
(3d Cir. 2002).
In this second amended Complaint, Plaintiff’s allegations
regarding two other inmates, Winestock and McKubbin, does not
establish that they were similarly situated to Plaintiff and
were treated differently.
First, with regard to McKubbin,
Plaintiff attaches to his second amended Complaint, Warden
Zickefoose’s January 24, 2012 response to McKubbin’s
administrative remedy in which McKubbin challenged the placement
of a Greater Severity PSF on him upon his request for a lesser
security transfer.
Warden Zickefoose upheld the increased PSF
despite an earlier classification to a minimum security level in
2011, observing that a review of McKubbin’s instant offense
“revealed a seriousness that would require greater security at
this time.”
(Dkt. # 6-1, Ex. 1.)
Specifically, the Warden
noted that McKubbin had been identified as a supervisor in a
drug organization and carried weapons for the organization,
consistent with BOP Program Statement 5100.08.
(Id.)
McKubbin
was denied “camp” placement just like Plaintiff for drug offense
activity that would warrant a greater security risk than an
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inmate’s assigned security level.
Consequently, this newly
added reference to Inmate McKubbin does not support an equal
protection claim.
Second, Plaintiff refers to inmate Winestock, alleging that
Winestock was allowed camp placement despite an offense level
enhancement for a leadership role in a drug offense that
involved significantly more drugs than Plaintiff’s drug offense.
Nevertheless, Plaintiff admits that Winestock is not in a
minimum security camp and is housed at the FCI Elkton in Ohio.
(Dkt. # 6-1, ¶ 9.)
Moreover, with regard to security level and placement
decisions that are based on individual factors and histories, it
is hard to imagine that any inmate would be considered similarly
situated.
Indeed, Petitioner’s dubious reference to Winestock’s
assignment to prison camp is insufficient to support an equal
protection claim because decisions regarding security
classifications “may legitimately be informed by a variety of an
individual’s characteristics” that would warrant different
treatment for inmates based on valid penological concerns.
Rowe
v. Cuyler, 534 F. Supp. 297, 301 (E.D.Pa. 1982), aff’d, 696 F.2d
985 (3d Cir. 1982)(unpublished disposition)(“it is difficult to
believe that any two prisoners could ever be considered
‘similarly situated’ for the purpose of judicial review on equal
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protection grounds of broadly discretionary decisions [such as
eligibility for prison pre-release programs and camp placement
programs] because such decisions may legitimately be informed by
a broad variety of an individual’s characteristics”).
See also
Lyon v. De La Jour, No. 12-7671-ABC(E), 2013 WL 140243, *5
(C.D.Cal. Jan. 9, 2013).
In Lyon, the district court dismissed petitioner’s equal
protection claim relating to denial of parole because petitioner
could not show he was intentionally treated differently from
other similarly situated parole applicants.
The court
discounted petitioner’s reference to cases where other inmates
allegedly were granted parole because no two prisoners could be
deemed “similarly situated” given their individual histories and
characteristics that necessarily inform parole decisions, which
are discretionary and legitimately fact sensitive.
Id.; see
also Iwanicki, Pennsylvania Board of Probation and Parole, No.
2:12-192, 2013 WL 302207, *8, n.11 (W.D.Pa. Jan. 25, 2013)(“in
making its individualized determinations concerning the many
convicts who come before the Board, it is difficult to imagine
that as to the many unique individual characteristics of each
candidate for parole, any one candidate is truly ‘similarly
situated’ to any other candidate such that treating one
differently results in treating ‘similarly situated’ individuals
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differently because they are, in fact, not ‘similarly
situated.’”); Remsen v. Holland, No. 12-00731-BAM-HC, 2012 WL
5386347, *5 (E.D.Cal. Nov. 1, 2012) (in light of discretionary
and “highly fact bound” nature of parole decision, and legal
standards governing parole decision, “the histories of other
prisoners do not establish that Petitioner was similarly
situated with other prisoners or tend to show any invidious
discrimination that would be protected under the federal Equal
Protection Clause”).
In fact, with regard to discretionary decisions such as
parole, security classification and placement, courts in the
Third Circuit have found it improbable that prisoners can be
found to be similarly situated to one another for equal
protection purposes, under any circumstances.
See Grejda v.
Longley, 2012 WL 2861733, *14 (W.D.Pa. Jun. 20, 2012)(citing
Rowe v. Cuyler, supra; Johnson v. Paparozzi, 219 F.Supp.2d 635,
644 (D.N.J.2002); Bagwell v. Brewington–Carr, 2000 WL 1728148,
at *19 (D.Del. Apr.27, 2000), aff’d, 33 F. App’x 647 (3d Cir.
2002); Watkins v. Horn, 1997 WL 566080 at *4 (E.D.Pa. Sept.5,
1997); Adams v. McAllister, 798 F. Supp. 242, 246 (M.D.Pa.),
aff’d, 972 F.2d 1330 (3d Cir. 1992).
Thus, Plaintiff cannot
meet his burden of demonstrating that he was similarly situated
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to other inmates who allegedly received more favorable treatment
than he.
Further, even assuming that Plaintiff had provided evidence
showing that he had been treated differently than other
similarly situated individuals, Plaintiff has provided no facts
to indicate that Defendants’ denial of camp placement for
Plaintiff was intentional and purposeful discrimination with no
rational basis for the difference in treatment.
This Court
cannot ignore the BOP’s decision regarding the increase in
Plaintiff’s security level and denial of camp placement, which
was legitimately informed by Plaintiff’s offense history in
conformity with the BOP’s Program Statement 510.08.
1, Ex. 3.)
(Dkt. # 6-
While Plaintiff insists that he was a wholesaler not
subject to a “greatest severity” designation, the offense
history he provides with his amended Complaint (namely, excerpts
from Plaintiff’s presentence report) is strewn with numerous
facts to support the BOP’s decision that Plaintiff had a
leadership role in his instant offenses that would appropriately
negate a lower security designation as argued by Plaintiff for
placement in a minimum security camp facility.
(Id., Ex. 2.)
Consequently, Plaintiff cannot show that the BOP’s decision
was the result of purposeful discrimination where it was
consistent with Program Statement 5100.08.
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See DeHart v. Horn,
227 F.3d 47, 61 (3d Cir. 2000) (if an infringement on a
prisoner’s equal protection rights is reasonably related to a
legitimate penological interest, the prison regulation will be
upheld); see also Ryan v. Scism, 474 F. App’x 49, 52–53 (3d Cir.
2012) (despite mention of two other inmates who received a
lesser sanction than petitioner for the same prohibited act, the
court denied the equal protection claim because petitioner
failed to show that the inmates were similarly situated to him,
and petitioner could not dispute that he was sanctioned in
conformity with the regulation); Hall v. Zickefoose, 448 F.
App’x 184, 187 (3d Cir. 2011) (same); Millard v. Hufford, 415 F.
App’x 348, 350 (3d Cir. 2011) (per curiam) (same).
Therefore, because Plaintiff has not pled a sufficient
factual basis for claiming intentional discrimination and has
failed to distinguish himself from similarly situated inmates,
the second amended Complaint does not state a claim for an equal
protection violation.
Accordingly, the second amended Complaint
will be dismissed without prejudice.
See Solan v. Zickefoose,
No. 11-1895 (JBS), 2013 WL 1007665, *6-7 (D.N.J. Mar. 11, 2013)
V.
CONCLUSION
For the reasons set forth above, Plaintiff’s motion to reopen this case is granted.
However, the second amended
Complaint will be dismissed without prejudice, pursuant to 28
17
U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1), for failure to
state a claim upon which relief may be granted at this time.
appropriate order follows.
s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated: June 25, 2013
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