DIPPOLITO v. THE UNITED STATES OF AMERICA et al

Filing 70

OPINION. Signed by Judge Robert B. Kugler on 12/23/2016. (dmr)

NOT FOR PUBLICATION

(Doc. Nos. 65, 69)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
FRANK DIPPOLITO,
:
:
Plaintiff,
:
:
:
:
:
v.
:
:
THE UNITED STATES OF AMERICA,
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et al.,
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Defendants. :
___________________________________ :

Civil No. 13-175 (RBK/JS)
OPINION

KUGLER, United States District Judge:
Frank Dippolito (“Plaintiff”) brings federal claims for Eighth Amendment violations
concerning conditions of confinement against Defendants Norwood, Zickefoose, Hollingsworth,
Holdren, Dynan, Daniels, Carroll, Robinson, Bullock, and Alexander and for First Amendment
retaliation against Defendants Bullock and Carroll (collectively, “Defendants”). The Court notes
that Defendant Norwood has been terminated from this case since the instant motion as filed. See
August 5, 2016 Opinion (Doc. No. 67). This matter comes before the Court on Defendants’
Motion for Summary Judgment (Doc. No. 65) and Plaintiff’s Motion to Appoint Pro Bono
Counsel (Doc. No. 69). For the following reasons, Defendants’ motion is GRANTED and
Plaintiff’s motion is DENIED AS MOOT.

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I.

FACTUAL BACKGROUND
The facts, in the light most favorable to the Plaintiff, are as follows1: Frank Dippolito was

an inmate at FCI Fort Dix in January 2013, but has since been released from federal custody.
Defendants’ Statement of Material Facts Not in Dispute (“Defs.’ Statement”) ¶ 1. This case
involves several claims that Plaintiff submitted through the prisoner grievance process. Defs.’
Statement ¶ 13. This Court has dismissed claims related to several of these grievances in its
December 21, 2015 Opinion. (Doc. No. 55). The relevant claims that remain have to do with the
conditions of Plaintiff’s confinement and alleged retaliation for Plaintiff exercising his right to
file grievances.
Plaintiff filed a number of grievances and administrative tort claims related to his
conditions of confinement. In April 2011, Plaintiff filed Remedy ID 635307, which was a BP-9
form asking whether inmates could return to their units from work duty if there was inclement
weather. Moran. Decl., Ex. 5, at 4 (Doc. No. 65-11). This grievance was rejected because
Plaintiff failed to submit proof (through a BP-8) that he had attempted informal resolution of the
matter. Id. Plaintiff then appealed the rejection to the Regional and Central Bureau of Prisons
(“BOP”) offices. Id. at 2-3. Plaintiff’s appeals were rejected due to his failure to submit a BP-8.
Id. Plaintiff filed an additional grievance related to work duty in inclement weather (Remedy ID
636987), which was also rejected at the institutional, Regional, and Central Office levels due to
Plaintiff’s failure to describe his relief sought on the BP-9 form. Id. at 4-6.
Plaintiff filed three other grievances related to his conditions of confinement: 1) Remedy
ID 643817, requesting a copy of a decibel test (June 2011); 2) Remedy ID 730222, requesting a

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The Court notes that Plaintiff made no responsive filing regarding Defendants’ Statement of Material Facts Not in
Dispute. Accordingly, the Court treats Defendants’ Statement as fact for the purposes of this motion. The Court
also borrows information from Plaintiff’s Second Amended Complaint.

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cancer screening (April 2013); and 3) Remedy 753618, requesting a wash basin in the food
services area (October 2013). Id. at 13, 15, 17. Each of these grievances was denied by the
warden at the institutional level. Id. Plaintiff appealed each denial to the Regional Office, which
upheld the warden’s denials. Id. at 14, 16, 18. Plaintiff did not appeal the Regional Office’s
respective decisions to the Central Office. Moran Decl. ¶ 11 (Doc. No. 65-6).
Furthermore, Plaintiff filed a number of administrative tort claims related to his
conditions of confinement. Plaintiff filed on claim on or about June 1, 2011 alleging that the PA
system at FCI Fort Dix was too loud, which was denied by the BOP on November 22 2011.
Moran Decl., Ex. 6 (Doc. No. 65-12). Plaintiff also filed eight administrative tort claims
regarding conditions at FCI Fort Dix on February 11, 2011. Moran Decl. ¶ 12. Plaintiff’s
complaints had to do with alleged exposure to jet fuel/exhaust from McGuire Air Force Base,
tainted drinking water, exposure to asbestos, lack of sprinkler systems, sewage leaks, poor
ventilation in the unit, lead paint, and contaminated soil. Defs.’ Statement ¶ 23. Plaintiff’s
complaints did not allege injuries due to these conditions. Defs.’ Statement ¶ 24.
Plaintiff alleges that the unit staff began their pattern of retaliation against him after he
began formally requesting consideration for placement in an extended halfway house pursuant to
the Second Chance Act. Second Amended Complaint (“SAC”) ¶ 83. Plaintiff had an interaction
in which Defendant Bullock yelled at Plaintiff on October 19, 2010 after finding a copy of a
memorandum that Plaintiff should not have had in his possession. Id. ¶ 84-85. On October 28,
2010, Bullock allegedly threatened to take away Plaintiff’s job. Id. ¶ 89-90. On December 21,
2010, Plaintiff had an additional run-in with Defendant Bullock. Plaintiff reported to his job but
did not have work to do for the day, so he returned to his unit building. Id. ¶ 92. When Plaintiff
returned to his unit building, Bullock asked him why he was in the building, since he should

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have been at his work assignment. Id. ¶ 93. Plaintiff and Bullock disagreed over whether Plaintiff
was authorized to return to his unit building after receiving no work at his work assignment. Id.
¶ 94-95. A hearing was conducted on December 22, 2010 to determine whether Plaintiff
committed an infraction. Id. at ¶ 97. The hearing panel determined that Plaintiff had been in his
unit building without authorization and imposed sanctions. Id. ¶ 98.
Plaintiff filed a grievance (Remedy ID 632835) regarding this incident report, which was
rejected as untimely and upheld by the Regional and Central Bureau of Prisons Offices. Defs.’
Statement ¶ 14. Plaintiff claims that he was further retaliated against when his application for a
bottom bunk was denied on March 15, 2011 due to the December 21, 2010 incident report. SAC
¶ 107. Plaintiff claims that the prisoner handbook contained no provision informing inmates that
they may be denied a bottom bunk due to an adverse incident report, and thus, this denial was
retaliation for his halfway house requests and grievance filings. Id. ¶ 83-84. Plaintiff filed a
grievance related to the bottom-bunk pass denial (Remedy ID 632704) which was fully
exhausted. Moran Decl. ¶ 7.
II.

STANDARD
The court should grant a motion for summary judgment when the moving party “shows

that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
deciding whether there is any genuine issue for trial, the court is not to weigh evidence or decide
issues of fact. Id. at 248. Because fact and credibility determinations are for the jury, the nonmoving party’s evidence is to be believed and ambiguities construed in her favor. Id. at 255.

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Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Anderson, 477 U.S. at 256. The nonmoving party must
at least present probative evidence from which jury might return a verdict in his favor. Id. at 257.
Furthermore, the nonmoving may not simply allege facts, but instead must “identify those facts
of record which would contradict the facts identified by the movant.” Port Auth. of New York
and New Jersey v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002). The movant is
entitled to summary judgment where the non-moving party fails to “make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III.

DISCUSSION
A. Eighth Amendment Claims
Plaintiff alleges that the conditions of his confinement violated the Eighth Amendment’s

proscription on cruel and unusual punishment. Prison conditions can run afoul of the Eighth
Amendment's proscription on cruel and unusual punishment by either ignoring “evolving
standards of decency” or involving “unnecessary and wanton infliction of pain.” See Rhodes v.
Chapman, 452 U.S. 337, 346 (1981) (citing Gregg v. Georgia, 428 U.S. 153, 171 (1976); Trop v.
Dulles, 356 U.S. 86, 101 (1958)). To assert an Eighth Amendment claim resulting from an
inmate's conditions of confinement, a prisoner must first show that the alleged deprivation is
“sufficiently serious” and that the prisoner has been deprived of the “minimal civilized measure
of life's necessities.” Farmer v. Brennan, 511 U.S. at 834 (1994). A prisoner must then show that
prison officials recognized the deprivation and demonstrated “deliberate indifference” to the
prisoner's health or safety. Id. Only “extreme deprivations” are sufficient to present a claim for

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unconstitutional conditions of confinement. See Fantone v. Herbik, 528 F. App'x 123, 127 (3d
Cir. 2013) (quoting Hudson v. McMillian, 503 U.S. 1, 8-9 (1992)).
The Prison Litigation Reform Act (“PLRA”) requires that an inmate must exhaust all
available administrative remedies before bringing civil rights claims against prison officials.
Hughes v. Knieblher, 341 Fed. App’x 749, 751 (3d Cir. 2009) (citing Jones v. Bock, 549 U.S. 199,
211 (2007)). The PLRA applies to claims brought by a litigant if they were a prisoner at the time
the complaint was filed, even if they are later released. Drayer v. Att’y Gen. of Del., 81 Fed. App’x
429, 431 (3d Cir. 2003) (quoting In re Smith, 114 F.3d 1247, 1251 (D.C. Cir. 1997)). The Court
must look to the BOP’s regulations to determine whether the prisoner satisfied the exhaustion
requirement. Jones, 549 U.S. at 218. BOP regulations require that an inmate attempt to resolve
their grievances informally before seeking administrative remedies. 28 C.F.R. § 542.13(a). Should
this fail, the inmate can submit a written request on BOP Form BP-9 to the warden of their facility
within 20 days of the relevant incident. 28 C.F.R. § 542.14(a). If the inmate is not pleased with the
warden’s decision, they may then appeal to the regional director using Form BP-10, and then to
the general counsel at the Central Offices using Form BP-11. 28 C.F.R. § 542.15. Submitting Form
BP-11 to the general counsel is the final administrative appeal available. 28 C.F.R. § 542.15(a).
Failure to exhaust may not be remedied by amending a complaint. See Ahmed v. Dragovich, 297
F.3d 201, 209 (3d Cir. 2002).
The Court finds that there is no dispute that Plaintiff failed to exhaust his potential
administrative remedies for grievances related to the conditions of his confinement. Plaintiff
variously failed to file the correct forms, amend deficiencies in grievances, and fully appeal
grievances to the BOP’s Central Office. Plaintiff clearly failed to exhaust his remedies in
compliance with the BOP’s regulations. Accordingly, Plaintiff’s Eight Amendment claims against

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Defendants Zickefoose, Hollingsworth, Holdren, Dynan, Daniels, Carroll, Robinson, Bullock, and
Alexander must be dismissed.
B. First Amendment Retaliation Claims
“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 link between the exercise of his
constitutional rights and the adverse action taken against him.” Mitchell v. Horn, 318 F.3d 523,
530 (3d Cir. 2003) (internal quotation marks and citation omitted). However, “once a prisoner
has demonstrated that his exercise of a constitutional right was a substantial or motivating factor
in the challenged decision, the prison officials may still prevail by proving that they would have
made the same decision absent the protected conduct for reasons reasonably related to legitimate
penological interest. Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001); see also Carter v.
McGrady, 292 F.3d 152, 154 (3d Cir. 2002) (retaliation claim fails where prison officials would
have disciplined inmate for policy violations notwithstanding his protected activity).
The parties do not appear to dispute that Plaintiff filing grievances is constitutionally
protected conduct. Defendants argue that Plaintiff cannot adequately show that denying a
bottom-bunk pass rises to the level of an adverse action that is sufficient to deter a person of
ordinary firmness from exercising his constitutional rights. The Third Circuit has held that
conditions of confinement or changes in conditions of confinement can constitute an adverse
action. See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). The Court does not, however,
believe that any reasonable jury could conclude that denying Plaintiff a bottom bunk constitutes
an adverse action, particularly in light of the fact that Plaintiff continued to exercise his right to
file grievances after he was denied a bottom-bunk pass.

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Furthermore, even if denying Plaintiff a bottom-bunk pass was an adverse action,
Plaintiff cannot show that there was a causal link between his grievances and the adverse action.
While Plaintiff’s complaint alleges that there was no policy in place for denying him a bottombunk pass given his seniority, there is no dispute at this stage of the litigation that FCI Fort Dix
had a policy that limited bottom bunks to inmates with demonstrated medical needs and inmates
who had not received an incident report less than one year prior to requesting a bottom-bunk
pass. Defs.’ Statement ¶ 32; Moran Decl., Ex. 4 (Doc. No. 65-10). There is also no dispute that
Plaintiff received an incident report in December 2010. There is no dispute that Plaintiff
requested a bottom bunk in March 2011, which was less than one year after he received an
incident report. It follows that there is no dispute that Plaintiff was ineligible for a bottom bunk
per FCI Fort Dix policy. Therefore, the Defendants can show that Plaintiff’s bottom-bunk
request would have been denied notwithstanding his grievances. Accordingly, the Court grants
summary judgment in favor of Defendants Bullock and Carroll regarding Plaintiff’s First
Amendment retaliation claim.
IV.

CONCLUSION
For the reasons stated herein Defendants’ Motion for Summary Judgment is GRANTED.

Plaintiff’s Eighth Amendment claims are DISMISSED. Plaintiff’s Motion to Appoint Pro Bono
Counsel is DENIED AS MOOT. An appropriate order shall issue.
Dated:

12/23/2016

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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