CAPALBO v. HOLLINGSWORTH
Filing
7
OPINION. Signed by Judge Renee Marie Bumb on 7/8/2013. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANGELO RICCARDO CAPALBO,
Civil No. 13-3291 (RMB)
Petitioner,
OPINION
v.
J. HOLLINGSWORTH,
Respondent.
APPEARANCES:
ANGELO RICCARDO CAPALBO, #55941-054
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro Se
PAUL. A. BLAINE, Assistant U.S. Attorney
401 Market Street
Camden, New Jersey 08101
Attorney for Respondent
BUMB, District Judge:
Angelo Riccardo Capalbo, an inmate incarcerated at FCI Fort Dix
in New Jersey, filed a Petition for a Writ of Habeas Corpus, pursuant
to 28 U.S.C. § 2241, and a memorandum of law, seeking an order
directing J. Hollingsworth, the Warden, to provide “timely health
services by professional staff consistent with acceptable standards
of medical practice, because for all reasons set forth (medical
conditions presented and the record before you) incarceration will
likely cause my death, and; such other relief as is just.”
(Petition, ECF No. 1 at 8.)
As Petitioner’s submissions indicated
a potential medical emergency, this Court ordered the United States
Attorney to file a declaration of a medical official within five days.
The government filed a timely response, including a letter brief
seeking dismissal of the Petition for lack of jurisdiction under §
2241 and the declaration of Dr. John Chung, Capalbo’s primary care
physician at FCI Fort Dix.
The government has satisfied this Court that Angelo Capalbo is
not in imminent danger.
As the government’s contention that this
Court lacks jurisdiction to grant Capalbo relief under § 2241 is
correct and sua sponte recharacterization of the Petition is not
appropriate at this time, this Court will summarily dismiss the
Petition for lack of jurisdiction under § 2241.
However, if Capalbo
either prepays the $400 filing and administrative fees for a civil
action, or files an application to proceed in forma pauperis,
pursuant to 28 U.S.C. § 1915, this Court will reopen the file and
recharacterize the pleading as a civil rights complaint under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971).
I.
BACKGROUND
In the section of the § 2241 form he used, Capalbo sets forth
one ground supporting his claim that he is being held in violation
of the Constitution, laws, or treaties of the United States:
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“Respondent fails to provide health services by professional staff
consistent with acceptable standards of medical practice.”
(Petition, Ground One, ECF No. 1 at 6.)
He sets forth the facts
supporting this ground in a 24-page “Memorandum in Support of
Petition for Habeas Corpus pursuant to 28 U.S.C. § 2241,” with several
exhibits attached.
Capalbo states in the memorandum that he is 53 years old, he
is serving a 20-year sentence, and he has been confined at FCI Fort
Dix since August 12, 2006.
Capalbo begins his narrative as follows:
“My reason for writing to [this Court] is because I would like to
obtain relief from the malpractice of FCI Fort Dix, Saint Francis
Hospital in Trenton, New Jersey, Dr. Shaw, a surgeon at Saint Francis
Hospital, the medical director at the FCI, Miss Abigail Lopez
DeLasalle and Dr. Chung who is also here at FCI, Fort Dix.”
ECF No. 1 at 10-11.)
(Mem.,
Capalbo describes in detail the events which
occurred after he was diagnosed with Ulcerative Colitis in November
2007, including surgical removal of polyps and a biopsy in August
2008, a colonoscopy and another biopsy in June 2006, surgical removal
of 70% of his colon in July 2011, a CT scan on August 3, 2011, surgical
installation of a colostomy bag in August 2011 (which was to remain
for three to six months), a barium CT scan in December 2011, a
colonoscopy in January 2012, a consultation with a
gastroenterologist in January 2012, and antibiotic treatment for
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MRSA since November 2012.
Capalbo asserts that a meeting occurred
in the spring of 2012, and his surgeon, Dr. Shaw, recommended to
prison medical officials that Capalbo “be transferred to a medical
facility, possibly one associated with a university hospital, like
Butner or Devens, where [he] could get . . . a procedure . . . called
a ‘J-Pouch surgery.’” (Mem., ECF No. 1 at 29-30.)
According to attachments, on November 11, 2012, Capalbo
submitted a request for administrative remedy to the Warden stating
that Capalbo has had a colostomy bag and open stoma for 18 months,
and requesting a transfer to a medical center in order to undergo
the surgical procedure recommended by Dr. Shaw.
Administrative Remedy, ECF No. 1 at 39.)
(Request for
On December 28, 2012,
Warden J. Hollingsworth denied the request as follows:
Records reveal you have a history of ulcerative colitis,
and in June 2011 you underwent a partial colectomy with
temporary ileostomy based on an exacerbation of your
colitis with diarrhea and bleeding . . . . The Surgeon
recommended a proctocolectomy and ileoanal anastomosis.
As a result, Health Services submitted you for a transfer
to a Medical Center where the surgery could be performed.
On September 7, 2012, the request was approved, but was
later denied on September 14, 2012, with instruction to
seek the surgical procedure locally. Currently, you are
scheduled to undergo the procedure in the near future at
a local medical center.
(Response dated Dec. 28, 2012, ECF No. 1 at 40.)
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In the Petition, Capalbo asserts that, as of May 16, 2013 (the
date he submitted the Petition), the surgery has not been performed
and he is still wearing the colostomy bag.
(Mem., ECF No. 1 at 31.)
On June 4, 2013, this Court ordered the government, within 5
days of the date of the entry of the Order, to file the declaration
of a medical official (1) setting forth the medical status of Angelo
Capalbo, (2) stating whether surgery has been scheduled, and (3)
averring that neither his health nor his life is in immediate danger.
(Order, ECF No. 2.)
As previously stated, on June 10, 2013, the
Assistant United States Attorney filed a letter brief seeking
dismissal of the Petition for lack of jurisdiction under § 2241 and
the declaration of Dr. Chung.
averred that:
(Response, ECF No. 3.)
Dr. Chung
Capalbo underwent a diverting ileostomy with
colostomy bag placement in August 2011; in June 2012, the surgeon
recommended that a total proctocolectomy with ileostomy and then an
ileanal pouch be performed at a university hospital; Capalbo was
scheduled to consult with a colorectal surgeon at Cooper University
Hospital during the week of June 10, 2013; and Capalbo’s health and
life were not in immediate danger.
at 5.)
(Chung Declaration, ECF No. 3-1
On June 13, 2013, the Assistant United States Attorney
updated the response to the Order to Show Cause, informing this Court
that on June 10, 2013, Dr. Michitaka Kawata, a colorectal surgeon
at Cooper University Hospital saw Capalbo and ordered additional
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testing.
(Updated Response, ECF No. 5.)
Capalbo filed a letter
stating that he was not able to file a response due to BOP’s failure
to deliver mail.
(Letter, ECF No. 7.)
As this Court is now satisfied that Capalbo is not in imminent
danger, this Court will consider the issue of jurisdiction.
II.
STANDARD OF REVIEW
Habeas Rule 4 requires a judge to sua sponte dismiss a petition
“[i]f it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district court.”
28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b).
Thus,
“Federal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face.”
v. Scott, 512 U.S. 849, 856 (1994).
McFarland
Dismissal without the filing
of an answer has been found warranted when “it appears on the face
of the petition that petitioner is not entitled to [habeas] relief.”
Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S.
1025 (1989); see also Mayle v. Felix, 545 U.S. 644, 655 (2005); United
States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000).
III.
DISCUSSION
Section 2241 of Title 28 provides that the writ of habeas corpus
shall not extend to a prisoner unless he “is in custody in violation
of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3).
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Lack of subject matter jurisdiction may be raised by the Court
sua sponte at any time.
See Bender v. Williamsport Area School
Dist., 475 U.S. 534, 541 (1986); Louisville & Nashville Railroad Co.
v. Mottley, 211 U.S. 149, 152 (1908); Van Holt v. Liberty Mutual Fire
Ins. Co., 163 F.3d 161, 166 (3d Cir. 1998).
Federal law provides two avenues of relief to prisoners:
petition for habeas corpus and a civil rights complaint.
Muhammad v. Close, 540 U.S. 749, 750 (2004).
a
See
“Challenges to the
validity of any confinement or to particulars affecting its duration
are the province of habeas corpus . . . [and] requests for relief
turning on circumstances of confinement may be presented in a § 1983
action.”
Id.
The United States Court of Appeals for the Third
Circuit explained the distinction between the availability of civil
rights and habeas relief as follows:
[W]henever the challenge ultimately attacks the “core of
habeas” - the validity of the continued conviction or the
fact or length of the sentence - a challenge, however
denominated and regardless of the relief sought, must be
brought by way of a habeas corpus petition. Conversely,
when the challenge is to a condition of confinement such
that a finding in plaintiff’s favor would not alter his
sentence or undo his conviction, an action under § 1983
is appropriate.
Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002); see also McGee
v. Martinez, 627 F. 3d 933, 936 (3d Cir. 2010) (“the fact that a civil
rights claim is filed by a prisoner rather than by an unincarcerated
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individual does not turn a § 1983 case or a Bivens action into a habeas
petition”).
Last year, in Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012),
a federal inmate petitioned for habeas relief under § 2241, arguing
that the Bureau of Prisons illegally placed him in the Special
Management Unit as punishment for filing lawsuits against the Bureau.
The district court dismissed the petition for lack of jurisdiction
under § 2241.
The Third Circuit noted that, although § 2241 extends
jurisdiction to claims concerning the execution of a federal inmate’s
sentence, “[i]n order to challenge the execution of his sentence
under § 2241, Cardona would need to allege that BOP’s conduct was
somehow inconsistent with a command or recommendation in the
sentencing judgment.”
Id. at 537.
The Third Circuit held that,
because Cardona’s petition did not allege that the “BOP’s conduct
was inconsistent with any express command or recommendation in his
sentencing judgment,” Cardona’s petition did not challenge the
execution of his sentence and the district court lacked jurisdiction
under § 2241.
Id.
The Petition filed by Capalbo does not challenge the fact or
duration of his incarceration, or “concern how BOP is ‘carrying out’
or ‘putting into effect’ his sentence, as directed in his sentencing
judgment.”
Cardona, 681 F.3d at 537.
Accordingly, Capalbo’s
challenge to the adequacy of his medical care at FCI Fort Dix is not
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cognizable under § 2241, and this Court will dismiss the Petition
for lack of jurisdiction.
Id.; see also Carter v. Bledsoe, 2013 WL
2382615 (3d Cir. May 31, 2013) (prisoner’s challenge to custody
classification is not cognizable in § 2241 petition); Murray v. Fed.
Bureau of Prisons, 478 Fed. App’x 730 (3d Cir. 2012) (District Court
lacks jurisdiction under § 2241 to entertain challenge to conditions
of confinement); Johnson v. Zickefoose, Civ. No. 11-6754 (RMB), 2012
WL 6691803 (D.N.J. Dec. 21, 2012) (District Court lacks jurisdiction
to entertain challenge to adequacy of medical care and denial of
transfer to medical facility under § 2241).
This Court will not sua sponte recharacterize the pleading as
a civil complaint under Bivens for two reasons.
First, while Capalbo
paid the $5 filing fee to file a § 2241 petition, the filing and
administrative fees to file a Bivens complaint are $400; in the
absence of an order granting in forma pauperis status, Local Civil
Rule 5.1(f) prohibits the Clerk from filing a civil
complaint
without prepayment of these fees.1
1
Inmates filing a Bivens complaint who proceed in forma pauperis are
required to pay the entire $350 filing fee in monthly installments,
which are automatically deducted from the prison account, see 28
U.S.C. § 1915(b), and Capalbo has not consented to such an
arrangement. Also, whether the $400 fee is prepaid or in forma
pauperis is granted, federal law requires a District Court to screen
a complaint for dismissal and to sua sponte dismiss the complaint
or any claim that fails to state a claim for relief. See 28 U.S.C.
§§ 1915(e)(2)(B), 1915A. Moreover, if a prisoner has, on three or
more occasions while incarcerated, brought a civil complaint or
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The second reason for not sua sponte recharacterizing Capalbo’s
Petition as a Bivens complaint is that the sole respondent is Warden
Hollingsworth and Capalbo does not state a Bivens claim against
Hollingsworth, i.e.., the Petition does not allege facts showing that
Hollingsworth himself was deliberately indifferent to Capalbo’s
medical needs.2
While this Court will not recharacterize the Petition as a
Bivens action, this Court will reopen the file if Capalbo elects to
recharacterize the matter as a Bivens action and, within 30 days,
he either prepays the $400 filing and administrative fees or files
an affidavit seeking permission to proceed in forma pauperis,
together with a six-month prison account statement certified by the
appropriate prison official, as required by 28 U.S.C. 1915(a).3
appeal in a federal court that was dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be
granted, or because it seeks monetary relief from immune defendants,
then the prisoner may not bring another action in forma pauperis
unless he or she is in imminent danger of serious physical injury.
See 28 U.S.C. § 1915(g).
2
The proper defendants in a Bivens action are persons who were
deliberately indifferent to the plaintiff’s serious medical needs.
In addition, a Bivens complaint must contain sufficient factual
“content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
3
In addition, if Capalbo elects to pursue relief under Bivens, it
would be appropriate for him to also file a civil complaint naming
defendants and asserting facts stating a deliberate indifference
claim against each defendant.
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III.
CONCLUSION
Based on the foregoing, the Court dismisses the Petition for
lack of jurisdiction.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
DATED: July 8, 2013
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