BARNES v. BROYLES et al
Filing
12
OPINION. Signed by Judge Noel L. Hillman on 1/12/16. (jbk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
TUERE BARNES,
:
:
Plaintiff,
:
Civ. No. 13-737 (NLH)
:
v.
:
OPINION
:
B.O.P OFFICER BROYLES, et al.,
:
:
Defendants.
:
___________________________________:
APPEARANCES:
Tuere Barnes, # 84034-054
FCI Danbury
Route 37
Danbury, CT 06811
Plaintiff Pro se
HILLMAN, District Judge
On or about February 4, 2013, Plaintiff Tuere Barnes, a
prisoner presently confined at the Federal Correctional
Institution (“FCI”) in Danbury, Connecticut, filed this civil
action asserting claims pursuant to Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971). (ECF No. 1).
This case was previously administratively
terminated due to Plaintiff’s failure to satisfy the filing fee
requirement. (ECF No. 2).
However, on or about June 14, 2013,
Plaintiff filed a Motion to Reopen the Case (ECF No. 6),
followed by an application to proceed in forma pauperis on July
1, 2013 (ECF No. 7).
Accordingly, on September 25, 2013, the
case was reopened for review by a judicial officer. (ECF No. 8).
The Court finds Plaintiff’s in forma pauperis application
to be complete.
At this time the Court must review the
Complaint 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 suit pursuant to 28 U.S.C. §
1915(e)(2)(B), seeks redress against a governmental employee or
entity, see 28 U.S.C. § 1915A(b), or brings a claim with respect
to prison conditions, see 42 U.S.C. § 1997e.
For the reasons
set forth below, the Complaint will be permitted to PROCEED IN
PART and will be DISMISSED IN PART.
I.
BACKGROUND
Plaintiff asserts that on July 9, 2012, while confined at
FCI Fort Dix, he was sexually assaulted by Defendant Broyles, a
female correctional officer at FCI Fort Dix.
Plaintiff contends
that when he “protested her sexual abuse,” Defendant Broyles and
other staff at FCI Fort Dix retaliated against him. (Compl. 4,
ECF No. 1).
Specifically, Plaintiff asserts that an unknown officer,
who Plaintiff describes as a Food Service Administrator,
“witnessed a confrontation between [Plaintiff] and Officer
Broyles” and then retaliated against Plaintiff by switching
Plaintiff’s job. (Id.).
Plaintiff later asserts that his job
was changed for “punishment purposes.” (Compl. 8, ECF No. 1).
2
Plaintiff states that Officer Kwartin is a Unit Counselor
at FCI Fort Dix.
Plaintiff asserts that he reported the sexual
assault to Officer Kwartin; however, Officer Kwartin failed to
report the assault as required by BOP policy.
Plaintiff further
complains that Officer Kwartin took three months to answer his
“BP8” (a prison grievance form), and purposely found Plaintiff’s
complaint to be unfounded. (Compl. 5, ECF No. 1).
Plaintiff names Officer Bartel, an SIS investigator at FCI
Fort Dix as a defendant in this case.
Plaintiff states that
Officer Bartel attempted to silence Plaintiff’s claims of sexual
assault by putting Plaintiff in “the Hole” and/or the Security
Housing Unit (“SHU”), by confiscating Plaintiff’s address book,
and by filing false charges against Plaintiff. (Compl. 5-6, ECF
No. 1).
Plaintiff also alleges that Officer Olsen, a unit Case
Manager at FCI Fort Dix, was made aware of Plaintiff’s sexual
assault claim, but did not properly report it.
Plaintiff
further states that Officer Olsen retaliated against him by
finding Plaintiff guilty of false charges, and by raising
Plaintiff’s custodial points “when he lacked authority to do
so.” (Compl. 6, ECF No. 1).
Plaintiff asserts that Officer Hammerman, a property
officer in the SHU, confiscated items that Plaintiff was
permitted to possess.
Plaintiff contends that Officer
3
Hammerman’s “goal [for doing so] was strictly to punish
[Plaintiff] for filing a complaint against his fellow officer.”
(Compl. 6, ECF No. 1).
Plaintiff further states that Officer
Hammerman “threw papers relating to my sexual assault
accusation.” (Compl. 9, ECF No. 1).
Plaintiff also brings a retaliation claim against Officer
Rodriguez, who Plaintiff states is a Unit Manager at FCI Fort
Dix.
Specifically, Plaintiff states that Officer Rodriguez was
also made aware of Plaintiff’s sexual assault claim, but never
reported it properly. (Compl. 7, ECF No. 1).
Plaintiff further
asserts that Officer Rodriguez made several threats to Plaintiff
in July, August and September of 2012 in an attempt to get
Plaintiff to drop the sexual assault charges. (Id.).
Plaintiff
adds that Officer Rodriguez “refused to help [Plaintiff] with
any of [his] needs” while he was detained in the SHU.
Finally, Plaintiff names unknown officers as defendants.
Plaintiff does not explain their involvement and simply
describes them as “any officers who help conspire and inflict
punishment on me for filing my claim that I’m not aware off
[sic] but leave out as a result of this complaint.” (Compl. 7,
ECF No. 1).
Plaintiff seeks damages in the amount of one million
dollars.
4
II.
STANDARDS OF REVIEW
A. Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub.L. 104–134, §§
801–810, 110 Stat. 1321–66 to 1321–77 (Apr. 26, 1996) (“PLRA”),
district courts must review complaints in those civil actions in
which a prisoner is proceeding in forma pauperis, see 28 U.S.C.
§ 1915(e)(2)(B), seeks redress against a governmental employee
or entity, see 28 U.S.C. § 1915A(b), or brings a claim with
respect to prison conditions, see 42 U.S.C. § 1997e.
The PLRA
directs district courts to sua sponte dismiss 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.
Every complaint must comply with the pleading requirements
of the Federal Rules of Civil Procedure.
Rule 8(a)(2) requires
that a complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
“Specific facts are not necessary; the statement need only ‘give
the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (citations omitted).
While a complaint . . . does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
5
not do ... . Factual allegations must be enough to
raise a right to relief above the speculative level .
. . .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
That is, a complaint must assert “enough facts to state a
claim to relief that is plausible on its face.” Id. at 570.
“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.” Fair
Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n. 3 (3d Cir.
2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
The determination of whether the factual allegations
plausibly give rise to an entitlement to relief is “‘a contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.’” Bistrian v. Levi, 696
F.3d 352, 365 (3d Cir. 2012) (citations omitted).
Thus, a court
is “not bound to accept as true a legal conclusion couched as a
factual allegation,” and “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements,
do not suffice.” Iqbal, 556 U.S. at 678 (citations omitted).
In general, where a complaint subject to statutory
screening can be remedied by amendment, a district court should
not dismiss the complaint with prejudice, but should permit the
amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson
6
v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002)
(noting that leave to amend should be granted “in the absence of
undue delay, bad faith, dilatory motive, unfair prejudice, or
futility of amendment”), cited in Thomaston v. Meyer, 519 F.
App’x 118, 120 n.2 (3d Cir. 2013); Urrutia v. Harrisburg County
Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
Finally, in determining the sufficiency of a pro se
complaint, the Court must be mindful to accept its factual
allegations as true, see James v. City of Wilkes-Barre, 700 F.3d
675, 679 (3d Cir. 2012), and to construe it liberally in favor
of the plaintiff, see Haines v. Kerner, 404 U.S. 519, 520-21
(1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
Nevertheless, “pro se litigants still must allege sufficient
facts in their complaints to support a claim.” Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation
omitted).
B. Bivens Claims
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court
held that a violation of the Fourth Amendment by a federal agent
acting under color of his authority gives rise to a cause of
action against that agent, individually, for damages.
The
Supreme Court has also implied damages remedies directly under
the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 100
7
S.Ct. 1468, 64 L.Ed.2d 15 (1980), and the Fifth Amendment, see
Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846
(1979).
But “the absence of statutory relief for a
constitutional violation does not necessarily mean that courts
should create a damages remedy against the officer responsible
for the violation.” Schreiber v. Mastrogiovanni, 214 F.3d 148,
152 (3d Cir. 2000) (citing Schweiker v. Chilicky, 487 U.S. 412,
108 S.Ct. 2460, 101 L.Ed.2d 370 (1988)).
Bivens actions are simply the federal counterpart to § 1983
actions brought against state officials who violate federal
constitutional or statutory rights. See Walker v. Zenk, 323 F.
App'x 144, 145 n.1 (3d Cir. 2009) (citing Egervary v. Young, 366
F.3d 238, 246 (3d Cir. 2004), cert. denied, 543 U.S. 1049, 125
S.Ct. 868, 160 L.Ed.2d 769 (2005)).
Both are designed to
provide redress for constitutional violations and, because
claims under Bivens are a parallel right to claims under § 1983,
“the analysis established under one type of claim is applicable
under the other.” Wright v. Evans, No. 07-3725, 2009 WL 799946,
at *9 (D.N.J. Mar. 24, 2009) aff'd sub nom. Wright v. Drug Enf't
Agency, 354 F. App'x 608 (3d Cir. 2009) (citing Egervary, 366
F.3d at 246); see also Burk v. Church & Dwight Corp., No. 132642, 2013 WL 5703617, at *2 (D.N.J. Oct. 17, 2013) (citing Chin
v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987)).
8
“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.” Dippolito v. United States, No. 13-175, 2015 WL 9308238,
at *3 (D.N.J. Dec. 21, 2015) (citing 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
Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 (2001).
C. Retaliation Claims
“Retaliating against a prisoner for the exercise of his
constitutional rights is unconstitutional.” Bistrian v. Levi,
696 F.3d 352, 376 (3d Cir. 2012).
A prisoner alleging
retaliation must show that: (1) he engaged in constitutionally
protected conduct, (2) he then suffered some adverse action
caused by prison officials; and (3) a causal link existed
between the protected conduct and the adverse action. Obiegbu v.
Werlinger, 581 F. App'x 119, 122 (3d Cir. 2014) (citing Rauser
v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)).
9
III. DISCUSSION
Here, Plaintiff sets forth various claims against eight
different defendants.
The Court will address the claims against
each defendant in turn.
A. Officer Broyles
Plaintiff brings claims against Officer Broyles for sexual
assault and retaliation.
1. Sexual Assault Claim
A prison inmate has a constitutional right to be secure in
his bodily integrity and free from attack by prison guards.
Castillo v. Day, 790 F.3d 1013 (10th Cir. 2015) (citation
omitted).
The sexual assault of a prison inmate by a guard is a
violation of the inmate's Eighth Amendment rights. See, e.g.,
Id.; Wood v. Beauclair, 692 F.3d 1041 (9th Cir. 2012) (citation
omitted); Wright v. O'Hara, No. 00-1557, 2002 WL 1870479 (E.D.
Pa. Aug. 14, 2002) (holding that allegations that state prison
guard sexually assaulted prisoner and incited other prisoners
against him stated Eighth Amendment violation, for purposes of
prisoner's § 1983 action); see also Women Prisoners of the Dist.
of Columbia Dep't of Corr. v. District of Columbia, 877 F.Supp.
634, 665 (D.D.C. 1994) (“[U]nsolicited touching of . . .
prisoners' [genitalia] by prison employees are ‘simply not part
of the penalty that criminal offenders pay for their offenses
against society.’” (quoting Farmer v. Brennan, 511 U.S. 825,
10
834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994))), aff'd in part and
vacated in part, 93 F.3d 910 (D.C. Cir. 1996); Riley v. Jeffes,
777 F.2d 143 (3d Cir. 1985) (holding that a complaint alleging
specific facts relating to sexual assaults, among other things,
stated cause of action for violations of Eighth Amendment).
Here, Plaintiff alleges that Officer Broyles “sexual[ly]
assaulted, and or fondled” him on July 9, 2012.
Therefore,
construing Plaintiff’s Complaint liberally as this court must,
see Haines, 404 U.S. at 520-21, Plaintiff has alleged a
deprivation of a right secured by the Constitution and laws of
the United States caused by an official acting under color of
federal law.
The Court will not dismiss this claim at this
time.
2. Retaliation
With respect to his retaliation claim against Officer
Broyles, Plaintiff alleges only that “she retaliated on me with
other staff known and unknown.” (Compl. 4, ECF No. 1).
This
allegation is insufficient to state a cause of action for
retaliation against Officer Broyles.
Although, as discussed
below, Plaintiff asserts that he suffered adverse action caused
by other prison officials, he has not alleged that Officer
Broyles had any direct involvement in an adverse action. See
Batts v. Giorla, 550 F. App'x 110, 112 (3d Cir. 2013) (The Third
Circuit has “consistently held that ‘[a] defendant in a civil
11
rights action must have personal involvement in the alleged
wrongs[.]’”) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988)); accord Robinson v. City of Pittsburgh, 120 F.3d
1286, 1293–96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d
1186, 1190–91 (3d Cir. 1995).
Even under the most liberal
interpretation, Plaintiff has failed to show personal
involvement on the part of Officer Broyles with respect to his
claim for retaliation.
Accordingly, the claim for retaliation
against Officer Broyles will be dismissed for failure to state a
claim upon which relief can be granted.
B. Unknown Food Administrator
With respect to the Unknown Food Administrator, Plaintiff
alleges only that he “witnessed a confrontation” between
Plaintiff and Officer Broyles; and that “based on Officer
Broyles retribution, [the Unknown Food Administrator] switched
[Plaintiff’s] job with the sole purpose to cause a punitive
effect.” (Compl. 4, ECF No. 1).
Plaintiff asserts a claim for
retaliation.
The allegations of the Complaint do not set forth a
cognizable claim against the Unknown Food Administrator under
Bivens.
As an initial matter, Plaintiff does not allege that he
was engaged in any constitutionally protected conduct.
Presumably, because Plaintiff states that his job was changed
“for punishment purposes” (Compl. 8, ECF No. 1), and was “based
12
on Officer Broyles[’] retribution” (Compl. 4, ECF No. 1),
Plaintiff means to assert that his job was changed as a
consequence of filing the sexual assault charges against Officer
Broyles.
However, Plaintiff fails to provide any facts to
support this bare allegation.
Moreover, Plaintiff does not provide any information
regarding the type of job he previously held, the type of job he
was switched to, or when the switch occurred; nor has Plaintiff
properly alleged that the Unknown Food Administrator had the
authority to change Plaintiff’s job.
Accordingly, Plaintiff has
failed to show that that a causal link existed between the
filing of the sexual assault charges and the job change. See
Obiegbu, 581 F. App'x at 122.
Plaintiff’s allegation against
the Unknown Food Administrator is merely a conclusory statement
and his claim for retaliation is dismissed for failure to state
a claim upon which relief can be granted.
C. Officer Kwartin
Plaintiff’s claim with respect to Officer Kwartin is twofold.
First, he asserts that Officer Kwartin never reported
Plaintiff’s allegation of sexual assault as required by BOP
policy. (Compl. 5, 8, ECF No. 1).
Specifically, Plaintiff cites
to Sexual Assault Intervention Protocol 115.6. 1 (Id.).
1
However,
See FEDERAL BUREAU OF PRISONS, PROGRAM STATEMENT 5324.11, SEXUALLY ABUSIVE
BEHAVIOR PREVENTION AND INTERVENTION PROGRAM, § 115.6 (Jan. 6, 2014)
13
generally, “a violation of a prison regulation cannot amount to
a wrong of constitutional magnitude within the meaning of
Bivens.” Carter v. United States, No. 14-4741, 2014 WL 4388607,
at *4 n.9 (D.N.J. Sept. 5, 2014) (collecting cases).
Accordingly, this allegation does not set forth a claim under
Bivens.
Second, Plaintiff asserts that Officer Kwartin “took three
months to answer my BP8 [prison grievance form] and purposely
found my complaint unfounded.” (Compl. 5, 8, ECF No. 1).
However, prisoners have no constitutionally protected right to a
prison grievance procedure. See Jones v. North Carolina
Prisoners' Labor Union, Inc., 433 U.S. 119, 137–38, 97 S. Ct.
2532, 53 L.Ed.2d 629 (1977) (Burger, C.J., concurring) (“I do
not suggest that the [grievance] procedures are constitutionally
mandated.”); Iwanicki v. Pennsylvania Dep't of Corr., 582 F.
App'x 75, 81 (3d Cir. 2014) (citing Hoover v. Watson, 886
F.Supp. 410, 418–19 (D. Del. 1995), aff'd, 74 F.3d 1226 (3d Cir.
1995) (“Violations of grievance procedures do not give rise to a
cognizable claim under section 1983.”)); see also Speight v.
Sims, 283 F. App’x 880, 880–81 (3d Cir. 2008) (citing Massey v.
Helman, 259 F.3d 641, 647 (7th Cir. 2001) (“[T]he existence of a
(addressing official response following an inmate report of
sexual assault).
14
prison grievance procedure confers no liberty interest on a
prisoner.”)).
Because the allegations of the Complaint seek only to
establish liability against Officer Kwartin based upon his
failure to follow BOP policy and the way he handled of
Plaintiff’s administrative grievances 2, Plaintiff fails to set
forth a constitutional violation under Bivens. See Iwanicki, 582
F. App'x 75; Alexander v. Gennarini, 144 F. App'x 924, 925 (3d
Cir. 2005) (allegations relating to defendants whose involvement
is limited to the post-incident grievance process do not state a
claim under § 1983); Carter, No. 14-4741, 2014 WL 4388607, at *4
2
The Court notes that Plaintiff also states with respect to
Officer Kwartin, “retaliatory treatment and disregarding of
duties as a unit counselor.” (Compl. 8, ECF No. 1). Plaintiff
then goes on to clarify that, “[o]n July 13, 2012 [Plaintiff]
reported assault to him and he failed to administer policy to
ensure [Plaintiff’s] safety [and the] integrity of the
facility.” (Id.). Thus, although Plaintiff uses the term
“retaliatory treatment,” the Court does not construe the
Complaint as asserting a claim for retaliation against Officer
Kwartin because, when read in context, the conduct complained of
specifically relates to Officer Kwartin’s failure to follow BOP
policy. Moreover, to the extent Plaintiff intended to assert a
claim for retaliation against Officer Kwartin, such a claim
would fail because Plaintiff has not set forth sufficient
information to state a claim. See Obiegbu, 581 F. App'x at 122
(to state a claim for retaliation a plaintiff must allege that:
(1) he engaged in constitutionally protected conduct, (2) he
then suffered some adverse action caused by prison officials;
and (3) a causal link existed between the protected conduct and
the adverse action); see also, e.g., Mack v. Yost, 979 F. Supp.
2d 639, 648 (W.D. Pa. 2013) (“An oral complaint to a prison
guard is not a petitioning for the redress of grievances
guaranteed by the First and Fourteenth Amendments.”).
15
n.9.
The claims against Officer Kwartin will be dismissed
without prejudice.
D. Officer Bartel
With respect to Officer Bartel, who Plaintiff describes as
an SIS investigator at FCI Fort Dix, Plaintiff alleges that he
was responsible for various adverse actions — including placing
Plaintiff in “the Hole” and/or the Security Housing Unit
(“SHU”), confiscating Plaintiff’s address book, and filing false
charges against Plaintiff — in an attempt to “silenc[e]
[Plaintiff’s] sexual assault claims.” (Compl. 6, ECF No. 1).
Although, as discussed above, a violation of prison grievance
procedure does not give rise to a cognizable claim under Bivens,
Iwanicki, 582 F. App'x 75, the Third Circuit has held that the
filing of an administrative grievance against prison officials
is a protected activity for purposes of a retaliation claim. See
Robinson v. Taylor, 204 F. App'x 155, 157 (3d Cir. 2006).
Therefore, the Court declines to dismiss the retaliation
claim against Officer Bartel at this time.
E. Officer Olsen
Plaintiff alleges that Officer Olsen, a unit Case Manager
at FCI Fort Dix, was made aware of Plaintiff’s sexual assault
claim, but did not properly report it.
For the reasons
explained above, any attempt to establish liability upon Officer
Olsen solely based on his or her failure to follow BOP policy
16
does not set forth a constitutional violation under Bivens. See
Carter, No. 14-4741, 2014 WL 4388607, at *4 n.9.
Therefore,
this allegation fails to state a claim for relief and will be
dismissed without prejudice.
The Court notes that Plaintiff also alleges that Officer
Olsen retaliated against him by finding Plaintiff guilty of
false charges and by raising Plaintiff’s custodial points “when
he had no authority to [do so].” (Compl. 9, ECF No. 1).
However, Plaintiff has not provided sufficient substantive
support for his argument that Officer Olsen retaliated against
him.
In contrast to the allegations he makes as to Officer
Bartel, Plaintiff does not allege that Officer Olsen filed any
false charges against him, or took any adverse action other than
finding Plaintiff guilty of certain charges.
Nor does Plaintiff
not supply any factual support to suggest that there exists a
casual link between Officer Olsen’s finding of guilt and
Plaintiff’s filing of sexual assault charges against Officer
Broyles.
Therefore, Plaintiff fails to state a claim for
retaliation. See Obiegbu, 581 F. App'x at 122.
To the extent Plaintiff means to challenge the disciplinary
proceeding for which Officer Olsen found Plaintiff guilty, the
Court notes that Plaintiff does not provide any factual
allegations in the Complaint which suggest that he was either
entitled to, or deprived of, due process with respect to the
17
finding of guilt.
As an initial matter, “[p]rison disciplinary
proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not
apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963,
2975, 41 L. Ed. 2d 935 (1974); see also Burns v. PA Dep't of
Corr., 642 F.3d 163, 170-71 (3d Cir. 2011) (citing Sandin v.
Conner, 515 U.S. 472, 483–84, 115 S.Ct. 2293, 132 L.Ed.2d 418
(1995) (holding that not all sanctions resulting from prison
disciplinary hearings affect protected liberty interests)).
However, the Supreme Court has held that, when a liberty
interest is implicated, a set of minimum procedural protections
apply. Wolff, 418, U.S. at 540.
Among those minimal procedural
protections is the right to an impartial disciplinary tribunal.
See Id. at 592; Lasko v. Holt, 334 F. App'x 474, 475 (3d Cir.
2009) (citing Meyers v. Aldredge, 492 F.2d 296, 306 (3d Cir.
1974)).
Here, Plaintiff alleges that Officer Olsen had a “biased
mindset” (Compl. 9, ECF No. 1), and raised Plaintiff’s custodial
points after finding him guilty of the infraction charged by
Officer Bartel.
Without reaching the issue of whether or not
Plaintiff’s increase in custodial points implicates a liberty
interest which would then entitle him to due process, this Court
finds that Plaintiff’s bare allegation that Officer Olsen had a
“biased mindset” fails to set forth a claim for a violation of
18
due process.
General assertions of staff bias are insufficient
to demonstrate the degree of bias necessary to prove a due
process violation under Meyers. See Lasko, 334 F. App'x at 476;
see also, e.g., Muchler v. Smith Bail Bonds, LLC, No. 3:15-CV0093, 2015 WL 2454050, at *9 (M.D. Pa. May 22, 2015).
Accordingly, Plaintiff’s conclusory allegations that Officer
Olsen had a “biased mindset” (Compl. 9, ECF No. 1), “went along
with Officer[] Bartel’s lies” and “hopes to get [Plaintiff]
moved to another jail” (Compl. 6, ECF No. 1), do not establish a
basis for relief under Bivens.
The claims against Officer Olsen will be dismissed without
prejudice for failure to state a claim upon which relief can be
granted.
F. Officer Hammerman
Plaintiff alleges that Officer Hammerman, a property
officer in the SHU, retaliated against Plaintiff by improperly
confiscating Plaintiff’s property.
Plaintiff contends that
Officer Hammerman’s “goal [for doing so] was strictly to punish
[Plaintiff] for filing a complaint against his fellow officer.”
(Compl. 6, ECF No. 1).
Because Plaintiff alleges that Officer Hammerman’s conduct
was directly related to Plaintiff’s filing of sexual assault
charges against Officer Broyles — including specific allegations
that Officer Hammerman confiscated books and legal papers
19
referencing Plaintiff’s sexual assault claims (Compl. 6, ECF No.
1), and that Officer Hammerman “threw papers relating to
[Plaintiff’s] sexual assault accusation” (Compl. 9, ECF No. 1),
the Court declines to dismiss the claims for retaliation against
Officer Hammerman for retaliation at this time.
G. Officer Rodriguez
Plaintiff also brings a retaliation claim against Officer
Rodriguez, who Plaintiff states is a Unit Manager at FCI Fort
Dix.
Plaintiff first alleges that Officer Rodriguez was made
aware of Plaintiff’s sexual assault claim, but never reported it
properly. (Compl. 7, ECF No. 1).
As set forth above, Plaintiff
cannot state a claim under Bivens against Officer Rodriguez
solely due to his or her failure to follow BOP policy. See
Carter, No. 14-4741, 2014 WL 4388607, at *4 n.9.
Therefore, any
claims based on Officer Rodriguez’s failure to properly report
Plaintiff’s claims of sexual assault are dismissed without
prejudice.
However, Plaintiff also alleges that Officer Rodriguez made
several threats to Plaintiff in July, August and September of
2012 in an attempt to get Plaintiff to drop the sexual assault
charges. (Compl. 9, ECF No. 1).
Plaintiff adds that Officer
Rodriguez “refused to help [Plaintiff] with any of [his] needs”
while he was detained in the SHU. (Compl. 7, ECF No. 1).
Accordingly, at this time the Court declines to dismiss any
20
claims for retaliation against Officer Rodriguez which are
premised upon alleged threats made by Officer Rodriguez, or upon
Officer Rodriguez’s alleged failure to address Plaintiff’s needs
while he was housed in SHU.
H. Unknown Officers
With respect to the unknown officers, Plaintiff does not
plead any facts.
Instead, Plaintiff simply describes them as
“any officers who help conspire and inflict punishment on me for
filing my claim that I’m not aware off [sic] but leave out as a
result of this complaint.” (Compl. 7, ECF No. 1).
Plaintiff may
not implicate in this litigation individuals whose identities he
does not know and whose involvement he is “not aware of[].”
(Id.).
Plaintiff has pled no facts which suggest that any other
individuals were involved in this fact pattern, let alone that
these other individuals violated Plaintiff’s constitutional
rights.
Therefore, the unknown defendants are dismissed without
prejudice. See Batts, 550 F. App'x at 112 (the Third Circuit has
“consistently held that ‘[a] defendant in a civil rights action
must have personal involvement in the alleged wrongs[.]’”)
(quoting Rode, 845 F.2d at 1207); Solan v. Ranck, 326 F. App'x
97, 100-101 (3d Cir. 2009) (quoting Rode); see also Iqbal, 556
U.S. 662 (to state a claim against a government official under
Bivens or § 1983, a plaintiff must plead that each government
official-defendant, through his or her own actions, has violated
21
Constitution); Tenon v. Dreibelbis, 606 F. App'x 681, 688 (3d
Cir. 2015) (each defendant must have “personal involvement,
including participation, or actual knowledge and acquiescence,
to be liable” under § 1983); Twombly, 550 U.S. at 555 (although
detailed factual allegations are not necessary, a “plaintiff's
obligation to provide the 'grounds' of his 'entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”).
In the event Plaintiff, through discovery or other means,
can produce information to suggest that there were additional
defendants who participated in acts of retaliation or other
constitutional violations against Plaintiff, he may seek to add
these individuals as defendants at that time, with the
appropriate factual support.
IV.
CONCLUSION
For the foregoing reasons, the Complaint will be DISMISSED
IN PART pursuant to 28 U.S.C. § 1915A(b)(1), for failure to
state a claim upon which relief can be granted, and will be
permitted to PROCEED IN PART.
Specifically, Plaintiff will be permitted to proceed with
the Eight Amendment claim against Officer Broyles based on the
allegations of sexual assault.
Additionally, Plaintiff’s claims
for retaliation against Officer Bartel, Officer Hammerman, and
22
Officer Rodriguez will be permitted to proceed at this time.
Defendants Unknown Food Administrator, Officer Kwartin,
Officer Olsen, and the Unknown Officers will be dismissed
without prejudice; and Plaintiff’s retaliation claims against
Officer Broyles will be dismissed without prejudice for failure
to state a claim upon which relief may be granted pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
These dismissals
are without prejudice because it is conceivable that Plaintiff
may be able to supplement his pleading with facts sufficient to
state claims under Bivens. See Denton, 504 U.S. 25; Grayson, 293
F.3d 103. 3
An appropriate Order will be entered.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: January 12, 2016
At Camden, New Jersey
3
Plaintiff should note that when an amended complaint is filed,
it supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts
the earlier pleading. See West Run Student Housing Associates,
LLC v. Huntington National Bank, 712 F.3d 165, 171 (3d Cir.
2013) (collecting cases). See also 6 CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2008). To avoid
confusion, the safer practice is to submit an amended complaint
that is complete in itself. Id.
23
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