CORDERO v. RICKNAUER et al
OPINION. Signed by Judge Robert B. Kugler on 9/16/2014. (drw)n.m.
……UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 13-2023 (RBK) (AMD)
ROBERT B. KUGLER, U.S.D.J.
Plaintiff is a federal prisoner who is currently incarcerated at Giles W. Dalby
Correctional Facility in Post, Texas. Plaintiff was previously incarcerated at F.C.I. Fort Dix, in
Fort Dix, New Jersey. He is proceeding pro se with a civil rights complaint filed pursuant to
Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 1 Presently
pending before the Court are defendants’, Robert Whritenour 2 and the Special Investigation
Section of F.C.I. Fort Dix (“SIS”), motion to dismiss, or in the alternative, for summary
judgment. For the following reasons, the motion will be granted in part and denied in part.
LEGAL STANDARD ON MOTION TO DISMISS PURSUANT TO RULE
12(b)(6) AND MOTION FOR SUMMAR JUDGMENT
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss an action for failure
to state a claim upon which relief may be granted. In evaluating a motion to dismiss, ‘“courts
accept all factual allegations as true, construe the complaint in the light most favorable to the
Bivens is the federal counterpart to 42 U.S.C. § 1983. See Walker v. Zenk, 323 F. App’x 144,
145 n.1 (3d Cir. 2009) (per curiam) (citing Egervary v. Young, 366 F.3d 238, 246 (3d Cir.
The complaint improperly names this defendant as FNU Ricknauer. The Court will use the
correct spelling of this defendant’s name in this Opinion.
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a
complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In making this determination at the motion to dismiss stage, a court must take three steps.
See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). “First, the court must
‘tak[e] note of the elements a plaintiff must plead to state a claim.’” Id. (quoting Iqbal, 129 S.
Ct. at 1947). “Second, the court should identify allegations that, ‘because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (citing Iqbal, 129 S. Ct. at 1950).
“Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement for relief.’” Id. (quoting
Iqbal, 129 S. Ct. at 1950).
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d
Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v. Cnty. of Allegheny
Pa., 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no
genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). “[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . .
the burden on the moving party may be discharged by ‘showing’ – that is, pointing out to the
district court – that there is an absence of evidence to support the nonmoving party’s case.” Id.
If the moving party meets its threshold burden, the opposing party must present actual
evidence that creates a genuine issue as to a material fact for trial. See Anderson, 477 U.S. at
248; see also FED. R. CIV. P. 56(c) (setting forth types of evidence on which nonmoving party
must rely to support its assertion that genuine issues of material fact exist). “[U]nsupported
allegations . . . and pleadings are insufficient to repel summary judgment.” Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Scheidemantle v. Slippery Rock
Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006) (“To prevail on a motion for
summary judgment, the nonmoving party needs to show specific facts such that a reasonable jury
could find in that party’s favor, thereby establishing a genuine issue of fact for trial.”)
Plaintiff was incarcerated at F.C.I. Fort Dix in September 2010 when the circumstances
giving rise to this complaint occurred. At that time, inmates of Mexican heritage, who were
gang “shot callers” or “Paisas,” were assigned to plaintiff’s prison unit. These “Paisas” began to
dominate the microwaves and televisions on the unit and threatened plaintiff and other inmates
of Cuban heritage. Plaintiff and another inmate warned Unit Manager Whritenour about the
threats to bodily harm they were receiving from the “Paisas” on September 1, 2010. Whritenour
told plaintiff that he would bring the matter to the attention of the SIS. On September 14, 2010,
plaintiff gave Whritenour a note containing a list of names of the inmates who were threatening
him. On September 28, 2010, plaintiff and another inmate again complained to Whritenour
about the threats they were receiving. Whritenour again stated to plaintiff and the other inmate
that he would take the matter to the SIS.
On September 30, 2010, plaintiff was attacked by the “Paisas.” The attack included
being struck with make shift improvised weapons as well as being pushed down a flight of stairs.
A unit officer eventually stopped the attack and plaintiff was transferred to the hospital. Plaintiff
was diagnosed with CI multiple fractures and placed in a cervical spine stabilizing halo brace for
three months. Doctors have told plaintiff that he will probably continue to experience moderate
to severe thoracic spine pain for the rest of his life and possibly arthritis of the thoracic spine as a
result of the injuries he suffered.
The prison received plaintiff’s administrative remedy request on January 17, 2012. In
that administrative remedy request, plaintiff indicated that he told his Unit Manager that the
“Paisas” were taking over the unit in the prison. Plaintiff continued in this request by stating the
But rather than actively pursuing a remedy to remove that
complained of threat to the peace and security of Unit 5751. [sic]
Instead that Unit Manager merely paid lip service to the matter and
let it take its destructive course. Unfortunately, that destructive
course nearly took Cordero’s life. It is an old pattern for prison
officials to solicit information from inmates in order to become
aware of volatile situations and diffuse them before they get out of
hand. Most of the time these early warnings save the lives of both
staff and innocent inmates, with respect to noninvolvement in the
matter. As a direct result of the Fort Dix institution Unit Manager
not protecting Cordero in no way after being warned by him on
more than three times Cordero thereby nearly lost his life.
(Dkt. No. 16-1 at p. 4.) Plaintiff requested to be released from prison and for the Bureau of
Prisons (“BOP”) to compensate him $5,000,000 for the injuries he suffered. Plaintiff’s request
for administrative remedy was denied. Plaintiff made similar allegations in appealing this denial
to the Regional Administrative Office and the Central Office. Both appeals were denied on April
10, 2012 and September 11, 2012, respectively.
On March 20, 2013, plaintiff filed his complaint in this Court. 3 The complaint requested
$5 million in monetary damages due to defendants’ failure to protect plaintiff. The Court then
screened the complaint and permitted plaintiff’s claims to proceed against Whritenour and SIS. 4
Whritenour and SIS then filed their motion to dismiss or in the alternative for summary
Defendants’ motion to dismiss/summary judgment raises three points. First, defendants
argue they are entitled to summary judgment because plaintiff has not exhausted his
administrative remedies. Second, defendants assert that the complaint should be dismissed as it
is time-barred as it was filed after the applicable statute of limitations expired. Finally,
defendants argue under the motion to dismiss standard that SIS should be dismissed as a
defendant because it is not a “person” amenable to suit under Bivens. Before analyzing the
merits of this motion, the Court must address some procedural matters that are also pending
before the Court.
Pursuant to the prisoner “mailbox rule,” a prisoner plaintiff’s court filing is deemed filed on the
date he delivered it to prison officials for mailing. See Houston v. Lack, 487 266, 270-71 (1988).
When a court is unable to determine the exact date that a prisoner handed his filing to a prison
official for mailing, it will look to the date the document is signed by the prisoner plaintiff. See
Maples v. Warren, No. 12-0993, 2012 WL 1344828, at *1 n.2 (D.N.J. Apr. 16, 2012) (“Often
times, when the court is unable to determine the exact date that a petitioner handed his petition to
prison officials for mailing, it will look to the signed and dated certification of the petition.”) In
this case, the complaint is dated March 20, 2013.
The Court did not permit plaintiff’s claims to proceed against the BOP as a prisoner may not
bring a Bivens claim against the BOP. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72
A. Procedural Motions
Defendants filed their motion for summary judgment on December 23, 2013. Plaintiff
then submitted a handwritten two-page response to the motion which the Court received on
January 21, 2014. (See Dkt. No. 12.) On January 27, 2014, the Court received plaintiff’s request
for an extension of time to file a response to defendants’ motion. (See Dkt. No. 13.) In that
motion, plaintiff indicated that due to his placement in the Special Housing Unit and the
continued pain he was suffering from his injuries, he would need additional time to file a
response in opposition to defendants’ motion. Thereafter, plaintiff filed what appear to be
identical responses in opposition to defendants’ motion, which the Court received on January 27,
2014 and February 18, 2014, respectively. (See Dkt. Nos. 14 & 15.) On April 11, 2014, the
Court received plaintiff’s motion to withdraw his two-page handwritten January 21, 2014
response as he indicated that he had not had adequate access to the prison’s paralegal specialist
before filing that short initial response. (See Dkt. No. 19.) He indicated that he sought to
withdraw that response and have the Court consider his January 27, 2014 (Dkt. No. 14.) as his
response in opposition to the motion.
Good cause appearing, the Court will grant plaintiff’s motion for an extension of time to
file an answer and his January 27, 2014 response will be considered timely. Furthermore, the
Court will grant plaintiff’s motion to withdraw his January 21, 2014 letter as his formal response
in opposition to defendants’ motion to dismiss/summary judgment and consider his January 27,
2014 response as his actual response in opposition to defendant’s motion. The Court notes that
defendants filed their reply brief in support of this motion after plaintiff had filed his January 27,
2014 response in opposition. That reply brief addressed the issues raised not only in plaintiff’s
January 21, 2014 response, but also in his January 27, 2014 response.
Plaintiff has also filed a motion for sanctions, or in the alternative, to have the Court
strike defendants’ reply in support of their motion to dismiss/summary judgment. In this motion,
plaintiff alleges that defendants have misled the Court in their reply brief. According to plaintiff,
the defendants mislead the Court when they attached to their original motion an affidavit from
Tara Moran, a legal assistant with the BOP, that stated that plaintiff had never filed an
administrative remedy, and yet in the reply, defendants attached another affidavit from Moran
that included an administrative remedy request and accompanying appeals that plaintiff had
Plaintiff’s motion for sanctions and/or motion to strike the reply will be denied. As
defendants note in their response to the motion for sanctions, plaintiff has conflated the concept
of filing an administrative remedy with filing an administrative remedy that raises a specific
claim pled in a court complaint. Indeed, Moran stated in her original affidavit that “Plaintiff has
never filed an administrative remedy regarding the defendant’s failure to protect him from the
assault the [sic] occurred at FCI Fort Dix.” (Dkt. No. 12-2 at p. 2.) As discussed infra, it is
defendants’ position that plaintiff’s request for administrative remedy and accompanying appeals
(which defendants attach to their reply) do not allege a failure to protect claim from a legal
standpoint. Thus, the original motion to dismiss/summary judgment and the reply are not
inconsistent with each other. Accordingly, plaintiff’s motion for sanctions and motion to strike
will be denied.
B. Defendants Motion to Dismiss/Motion for Summary Judgment
Defendants argue that their motion should be granted because plaintiff failed to exhaust
his administrative remedies and/or his complaint is untimely. Additionally, SIS argues that it
should be dismissed as a defendant in this action because it is not a “person” subject to a Bivens
action. Each of these arguments is considered in turn.
Defendants first argue that they are entitled to summary judgment because plaintiff has
failed to exhaust his administrative remedies on his failure to protect claim. The Prison
Litigation Reform Act (“PLRA”) states: “[n]o action shall be brought with respect to prison
conditions under the section 1983 of this title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is a mandatory prerequisite before a plaintiff
files a civil rights action regarding prison conditions. See Woodford v . Ngo, 548 U.S. 81, 85
(2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). “The PLRA’s exhaustion
requirement applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes[.]” Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation
omitted). A prisoner must exhaust administrative remedies even when the relief sought, such as
monetary damages, cannot be granted by the administrative process. See Woodford, 548 U.S. at
85 (citing Booth, 532 U.S. at 734).
To determine whether a prisoner has exhausted his administrative remedies, the Court
looks to the administration’s, in this case the BOP’s, applicable grievance procedure and rules.
See Jones v. Bock, 549 U.S. 199, 218 (2007) (stating that the procedural rules for exhausting
administrative remedies are defined by the prison grievance process itself and that “[c]ompliance
with the prison grievance procedures . . . is all that is required by the PLRA to ‘properly
exhaust”). The BOP’s Administrative Remedy Program is a multi-tier process that allows “an
inmate to seek formal review of an issue relating to any aspect of his/her own confinement.” 28
C.F.R. § 542.10. The inmate first must attempt to informally resolve his issue with the
institutional staff. See id. § 542.13(a). If informal resolution fails or is waived, the inmate then
may submit a formal Administrative Remedy Request on the appropriate BP-9 form within
twenty calendar days following the date for which the basis for the request occurred. See id. §
542.14(a). If the inmate is unsatisfied with the warden’s response to his Administrative Remedy
Request, he may submit an appeal on the BP-10 form to the appropriate Regional Director within
twenty calendar days of the date the warden signed the response. See id. § 542.15(a). An inmate
who is not satisfied with the Regional Director’s response may appeal to the General Counsel on
the appropriate BP-11 form within thirty calendar days of the date the Regional Director signed
the response. See id. An inmate’s appeal to the General Counsel is the final administrative
appeal. See id.
“[W]hether a prisoner properly exhausted a claim is made by evaluating compliance with
the prison’s specific grievance procedures.” See Drippe v. Tobelinski, 604 F.3d 778, 781 (3d
Cir. 2010). The Supreme Court has stated that, “[t]he level of detail necessary in a grievance
system to comply with the grievance procedures will vary from system to system and claim to
claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.” Jones, 549 U.S. at 218.
The BOP’s Administrative Remedy Procedure, 28 C.F.R. § 542.10 et seq. and its
Program Statement 1330.13, available at http://www.bop.gov/policy/progstate/1330_18.pdf (last
visited Sept. 12, 2014), do not provide meaningful guidance as to the level of specificity required
in an administrative remedy request except to note that “[t]he inmate shall place a single
complaint or a reasonable number of closely related issues on the [administrative remedy] form.”
28 C.F.R. § 542.14(c)(2). The Third Circuit has not addressed the issue of the level of specificity
required, however, it has noted that “[t]he primary purpose of a grievance is to alert prison
officials to a problem.” Williams v. Beard, 482 F.3d 637, 640 (3d Cir. 2007). This language has
led this and at least one other Court in this District to adopt the standard adopted by some other
Circuit Courts “that a grievance suffices if it alerts the prison to the nature of the wrong for
which redress is sought.” See Olivares v. United States, No. 07-3476, 2010 WL 5251429, at *4
(D.N.J. Dec. 16, 2010) (citing Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009) (quoting Strong v.
David, 297 F.3d 646, 650 (7th Cir. 2002))); see also Perez v. Turner, No. 11-6833, 2013 WL
3216147, at *7 (D.N.J. June 25, 2013); Nestor v. Dir. Ne. Region Bureau of Prisons, No. 114683, 2012 WL 6691791, at *8 (D.N.J. Dec. 20, 2012). The Court sees no reason to reject this
methodology and defendants cite to no binding precedent that that requires a heightened
specificity standard. Accordingly, the Court will analyze whether plaintiff’s administrative
remedy request provided the BOP with sufficient notice of the nature of the wrong for which
plaintiff now seeks relief in this Bivens complaint.
As detailed in supra Part III, plaintiff’s administrative remedy request explained that
plaintiff complained of threats the unit was facing from the “Paisas.” Furthermore, he stated that
despite his statements and requests to the Unit Manager three times with respect to the threats
that the “Paisas” posed, plaintiff almost lost his life and lost his good health. (See Dkt. No. 16-1
at p. 4.). Plaintiff’s appeals to the Regional Director and the Central Office also indicated that
plaintiff told his Unit Manager about the threats posed by the “Paisas,” but nothing was done and
he was ultimately attacked by them. Based on these allegations, the BOP should have been on
notice that plaintiff was asserting a failure to protect claim. Accord Perez, 2013 WL 3216147, at
*7 (finding that while plaintiff did not mention Eighth Amendment or Bivens in his
administrative remedy request, plaintiff’s description of his ailments, his disagreement about the
quality and effectiveness of the care he was receiving and questioning the defendants
professional qualifications was enough to put the BOP on notice of the nature of the wrong that
formed plaintiff’s medical treatment claim); Nestor, 2012 WL 6691791, at *8 (finding that
plaintiff’s statement that due to his rape and assault his Eight Amendment rights were violated
(subjection to cruel and unusual punishment) could be reasonably construed as stating a claim
that the officials were deliberately indifferent by failing to protect plaintiff such that the BOP
should have been on notice of the problem the BOP had in keeping plaintiff protected from
violent attacks by other prisoners).
Defendants’ citation to Thrower v. United States, 528 F. App’x 108 (3d Cir. 2013) (per
curiam) in their brief does not change this outcome as that case is distinguishable. In Thrower,
the plaintiff was pursuing a Bivens claim that that officers at a federal prison failed to protect him
by placing him in a cell with a dangerous inmate. See id. at 110. Ultimately, the Third Circuit
determined that the District Court had properly dismissed this claim for failure to exhaust
because the “record reflect[ed] that none of Thrower’s administrative grievances [had] alleged
that staff failed to protect him by placing him with a dangerous cellmate.” Id. Unlike Thrower,
plaintiff in this case detailed in his administrative remedy request that he let his Unit Manager
know of the threat posed by the “Paisas,” yet nothing was done about it. Furthermore, plaintiff
indicated that he was ultimately assaulted by the “Paisas.”
Defendants also argue that plaintiff failed to exhaust his administrative remedies because
his administrative remedy request was untimely. Defendants note that the assault occurred on
September 30 2010, yet plaintiff did not file his administrative remedy request until fifteen
months later, well beyond the twenty days set forth in 28 C.F.R. § 542.14(a). However, neither
plaintiff’s administrative remedy request, nor his appeals to the Regional Director and the
Central Office were denied as untimely. Accordingly, the exhaustion requirement of the PLRA
was satisfied as plaintiff’s administrative remedy request was decided on the merits. See Spada
v. Martinez, No. 13-4205, 2014 WL 4056924, at *3 (3d Cir. Aug. 18, 2014) (‘“[T]he exhaustion
requirement of the PLRA is satisfied by an untimely filing of a grievance if it is accepted and
decided on the merits by the appropriate prison authority.’”) (quoting Hill v. Curcione, 657 F.3d
116, 225 (2d Cir. 2011)) (citing Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000)). Therefore,
for these reasons, the Court finds that plaintiff exhausted his administrative remedies.
Statute of Limitations
Defendants next argue that the complaint should be dismissed as it was filed after the
applicable statute of limitations expired. Plaintiff asserts that his complaint is timely as the
statute of limitations should be equitably tolled during the time that he was exhausting his
The statute of limitations for a Bivens claim is taken from the forum state’s personal
injury statute. See Hughes v. Knieblher, 341 F. App’x 749, 752 (3d Cir. 2009) (per curiam)
(citing Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993); Napier v. Thirty or More
Unidentified Fed. Agents, Employees or Officers, 855 F.2d 1080, 1087 n.3 (3d Cir. 1988)). New
Jersey’s statute of limitations for personal injury actions is two years. See N.J. STAT. ANN. §
2A:14-2. “While state law provides the applicable statute of limitations, federal law controls
when a Bivens claim accrues.” Peguero v. Meyer, 520 F. App’x 58, 60 (3d Cir. 2013) (citing
Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal law, a Bivens claims accrues when the
plaintiff knows of or has reason to know of the injury. See Hughes, 341 F. App’x at 752 (citing
Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998)).
In this case, plaintiff knew or had reason to know of his injury on September 30, 2010,
when he was attacked by the “Paisas.” However, he did not file his complaint until March 20,
2013, or more than two years after his failure to protect claim accrued.
Plaintiff claims that his complaint should be considered timely as the two-year statute of
limitations should be equitably tolled during the time he was exhausting his administrative
remedies. As previously noted, the prison received his administrative remedy request on January
17, 2012, or 474 days after September 30, 2010, the day of the attack on plaintiff by the “Paisas.”
The Central Office denied his administrative remedy appeal on September 11, 2012. Plaintiff
then filed his complaint on March 20, 2013, or 190 days thereafter. Thus, if the period from
January 17, 2012 until September 11, 2012 is equitably tolled, plaintiff’s complaint will be
considered timely as less than two years would have run (474 days + 190 days = 664 days).
Defendants admit in their reply brief that “[b]ecause exhaustion of administrative
remedies is mandatory under the PLRA, the statute of limitations may be tolled while a prisoner
exhausts.” Indeed, while it does not appear that the Third Circuit has held in a precedential
opinion that the statute of limitations is tolled while a plaintiff prisoner exhausts his
administrative remedies under the PLRA, it has noted that “several courts of appeals have held
that, because exhaustion of prison administrative remedies is mandatory under the Prison
Litigation Reform Act (“PLRA”), the statute of limitations applicable to § 1983 actions should
be tolled while a prisoner exhausts.” Pressley v. C.O.I. Huber, 562 F. App’x 67, 70 (3d Cir.
2014) (per curiam) (citing Gonzalez v. Hasty, 651 F.3d 318, 323-24 (2d Cir. 2011); Brown v.
Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005); Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir.
2002); Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001); Brown v. Morgan, 209 F.3d 595,
596 (6th Cir. 2000)). While the Third Circuit may not have held that the period a prisoner takes
to exhaust his administrative remedies tolls the statute of limitations, other non-precedential
Third Circuit decisions appear to indicate that tolling is appropriate. See Flowers v. Phelps, 514
F. App’x 100, 101 n.1 (3d Cir. 2013) (per curiam) (“We also agree that because exhaustion of
prison administrative remedies is mandatory under the . . . PLRA, the statute of limitations
applicable to § 1983 actions may be tolled while a prisoner exhausts.”) (citations omitted);
Paluch v. Sec. Pa. Dep’t Corr., 442 F. App’x 690, 694 (3d Cir. 2011) (per curiam) (same)
(citations omitted). This Court has also similarly noted that a prisoner plaintiff’s statute of
limitations on his Bivens complaint is most likely tolled while he exhausts his administrative
remedies. See Raines v. Lappin, No. 11-5681, 2013 WL 3283930, at *6 (D.N.J. June 26, 2013)
(“Plaintiff is probably correct that the limitations period on a Bivens claim should be tolled while
a prisoner engages in the administrative remedy process.”) (citing Shakuur v. Costello, 230 F.
App’x 199, 201 (3d Cir. 2007) (per curiam)).
In light of the guidance from the Third Circuit in its non-precedential opinions, and in
light of the fact that a prisoner plaintiff needs to exhaust his administrative remedies before
bringing suit, the Court finds that equitable tolling applies while plaintiff exhausted his
administrative remedies from January 17, 2012 until September 11, 2012. Therefore, plaintiff’s
complaint will be deemed to have been filed within the applicable two-year statute of limitations
as the period between January 17, 2012 and September 11, 2012 will not count towards the twoyear limitations period.
Perhaps recognizing the applicability of equitable tolling to this case, defendants
nevertheless argue that plaintiff’s complaint is not timely because he did not file any
administrative remedies that Unit Manager Whritenour failed to protect him. This is in effect a
re-argument of defendants’ failure to exhaust argument. As stated in supra Part IV.B.i, however,
plaintiff exhausted his administrative remedies with respect to his failure to protect claim.
Therefore, he is entitled to equitable tolling during the period of his administrative remedy
request and appeals. As plaintiff is entitled to equitable tolling during this period, thereby
making his complaint timely, the Court need not consider plaintiff’s alternative argument that his
complaint is timely under a continuing injury theory.
SIS as a defendant
Finally, defendant SIS argues that it should be dismissed as a defendant because it is not
a “person” amenable to suit under Bivens. 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 state 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 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). “A Bivens claim can be maintained only against individual federal officers, not
against a federal entity.” Albert v. Yost, 431 F. App’x 76, 81 (3d Cir. 2011) (per curiam) (citing
Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86 (1994)). In this case, plaintiff is
attempting to bring his claims against SIS as a federal entity, as opposed to those individuals
within the SIS. This is an improper attempt to bring a Bivens claim against this federal entity.
Nevertheless, plaintiff argues that the determination of whether plaintiff can make a case
against SIS should not be made at this time as plaintiff needs discovery so that he can potentially
amend his complaint. While discovery could potentially lead plaintiff to individuals within SIS
who could be liable, this does not change the result that the SIS, as an entity as opposed to an
individual person, is not a proper defendant in this action as it is not a “person” for purposes of
bringing a Bivens claim. 5 Accordingly, the SIS will be dismissed as a defendant from this action
with prejudice due to plaintiff’s failure to state a claim upon which relief may be granted.
For the foregoing reasons, plaintiff’s motion for an extension of time to file his answer
and his motion to withdraw his January 21, 2014 filing are granted. Plaintiff’s motion for
sanctions or in the alternative to strike defendants’ reply to their motion for summary judgment
is denied. Defendants’ motion for summary judgment or alternatively, to dismiss for failure to
state a claim upon which relief may be granted is granted in part. Plaintiff’s claims against SIS
shall be dismissed with prejudice. An appropriate order will be entered.
DATED: September 16, 2014
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
To the extent that plaintiff may be seeking to raise claims against unnamed individual
defendants within the SIS, the proper procedure is to use fictitious names in a proposed amended
complaint and then amend his complaint once those individual names are discovered, as opposed
to naming a federal entity itself in the first instance.
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