FERRANTI v. DIXON

Filing 38

OPINION. Signed by Judge Noel L. Hillman on 2/21/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
JOSEPH DIXON,
:
:
Defendant.
:
______________________________:
JACK FERRANTI,

Civ. No. 14-3331 (NLH)
OPINION

APPEARANCES:
Jack Ferranti, # 45299-053
FCI Allenwood-Low
P.O. Box 1000
White Deer, PA 17887
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Jack Ferranti (“Plaintiff”), an inmate currently
confined at Federal Correctional Institution (“FCI”) Allenwood
in White Deer, Pennsylvania, filed his Complaint (ECF No. 1) on
May 27, 2014 alleging claims under Bivens v. Six Unknown Named
Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and
paid the filing fee.
On October 26, 2015, Defendant Joseph Dixon (“Defendant”)
filed a motion to dismiss. (ECF No. 25.)

On or about February

4, 2016, Plaintiff filed his opposition (ECF No. 31) to
Defendant’s motion, and also filed a motion to amend the
Complaint (ECF No. 32).

Defendant then filed a response to

Plaintiff’s motion to amend. (ECF No. 33.)

In a July 7, 2016

Opinion and Order, the Court denied Plaintiff’s motion to amend
and granted Defendant’s motion to dismiss.

(ECF Nos. 34-35.)

However, the Court granted Plaintiff leave to file an amended
complaint, which he did on August 3, 2016.

(ECF No. 36.)

At this time, the Court must review the Amended Complaint,
pursuant to 28 U.S.C. § 1915A, to determine whether it should be
dismissed as frivolous or malicious, for failure to state a
claim upon which relief may be granted, or because it seeks
monetary relief from a defendant who is immune from such relief.
For the reasons set forth below, the Court concludes that the
Complaint should be dismissed.
I.

BACKGROUND
In its July Opinion and Order, the Court summarized the

factual allegations of the original Complaint as follows:
In his Complaint, Plaintiff asserts that a
Unit Counselor at FCI Fort Dix, Joseph Dixon,
inquired about Plaintiff’s participation in
the
Bureau
of
Prison’s
(“BOP”)
Inmate
Financial Responsibility Program (“IFRP”).
Plaintiff informed Unit Counselor Dixon that
he “had a court ordered stay as to the fine
imposed in his case” which Plaintiff contends
that other federal institutions had honored.
Defendant placed Plaintiff on IFRP Refusal
Status and instructed an officer at the
Receiving and Discharge Department to send
Plaintiff’s
“hobby
craft
material”
to
Plaintiff’s son’s home address.
Plaintiff
contends that there is no provision in the
BOP’s regulations which calls for removal of
a prisoner from participation in a hobby craft
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program when said prisoner is on IFRP Refusal
Status.
Plaintiff
concedes
that
one
of
the
restrictions which can be imposed as a result
of a prisoner’s IRFP Refusal Status is being
assigned the lowest housing status. Plaintiff
states that Defendant asked Plaintiff to show
him paperwork proving Plaintiff had a “bottom
bunk pass.” Plaintiff previously had bottom
bunk
passes
from
two
other
federal
institutions where he had been incarcerated
and Plaintiff was assigned a bottom bunk upon
his arrival to FCI Fort Dix.
Defendant
instructed Plaintiff to “go to the Medical
Department and renew his bottom bunk pass by
July 15, 2012.”
Defendant further informed
Plaintiff that, if he did not have a renewed
bottom bunk pass by July 15, 2012, Defendant
would move Plaintiff to a top bunk.
Plaintiff states that on July 13, 2012, he
went to the Medical Department to renew his
bottom bunk pass.
However, he was informed
that he would need an appointment to see a
doctor before he could renew his pass.
Plaintiff
then
visited
Defendant’s
supervisor, Unit Manager Whritenour, to
discuss the situation. It is unclear from the
Complaint what the result of this discussion
was.
On July 15, 2012, Plaintiff was unable to
produce a renewed bottom bunk pass and, as a
result, Defendant indicated that he intended
to move Plaintiff to a top bunk. Plaintiff
told Defendant that he didn’t see the need for
reassignment given that there were two vacant
lower bunks in his living quarters. Plaintiff
states that Defendant became “loud and
verbally abusive” at this point, so Plaintiff
walked out of Defendant’s office and returned
to his living quarters.
Plaintiff contends that Defendant followed
Plaintiff to his living quarters and continued
to yell at Plaintiff.
Plaintiff further
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contends that Defendant demanded to see
Plaintiff’s identification card, “crowded
Plaintiff against his locker,” and eventually
instructed all other inmates in the room to
get out. Defendant called for backup before
pushing Plaintiff backwards, bending him over
a locker, and holding him by his right arm.
Another officer then grabbed Plaintiff and
handcuffed him.
Plaintiff complained that Defendant had hurt
his back. Plaintiff was taken to the Medical
Department where abrasions were found on his
back.
Plaintiff states that bruising was
still present ten days later.
As a result of this series of events,
Plaintiff was “taken to the Special Housing
Unit and given an incident report for (1)
Assaulting any person; (2) refusing to obey an
order and (3) Insolence toward a staff
member.”
(July 7, 2016 Opinion 2-4, ECF No. 34.)
The Court found that Plaintiff alleged two claims: (1)
Defendant violated 28 C.F.R. § 545.112 when he ordered that
Plaintiff’s hobby craft material be mailed to Plaintiff’s son;
and (2) Defendant used excessive force.

After dismissing the

claims regarding 28 C.F.R. § 545.112,1 the Court found that
Plaintiff had alleged only de minimus force and such an
allegation was insufficient to state an Eighth Amendment claim
for excessive force under relevant case law.

(Id. at 20.)

The Court will not review its holding regarding the IFRP
because Plaintiff raises only an excessive force claim in his
Amended Complaint.
1

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As permitted by the Court’s Opinion and Order, Plaintiff
then filed an Amended Complaint.

(ECF No. 36.)

He also filed a

supporting memorandum of law; his medical records; his
affidavit; and the affidavits of other inmates.
II.

(Id.)

DISCUSSION

A. Legal Standard
1. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 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.

This action is

subject to sua sponte screening for dismissal under 28 U.S.C. §
1915A because Plaintiff is a prisoner.
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’”

556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
5

v. Twombly, 550 U.S. 544, 555 (2007)).

To survive sua sponte

screening for failure to state a claim2, the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible.

Fowler v. UPMS Shadyside, 578 F.3d 203, 210

(3d Cir. 2009) (citation omitted).

“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.”

Belmont v. MB

Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012)
(quoting Iqbal, 556 U.S. at 678).

Moreover, while pro se

pleadings are liberally construed, “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).
2. Bivens Action
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971), the Supreme Court held that a violation of the
Fourth Amendment by a federal agent acting under color of his

“The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230,
232 (3d Cir. 2012) (discussing 42 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 F. App’x 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
2

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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 (1980), and the Fifth Amendment,
see Davis v. Passman, 442 U.S. 228 (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 (1988)).

Bivens actions are

simply the federal counterpart to § 1983 actions brought against
state officials who violate federal constitutional or statutory
rights. See Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004).
Both are designed to provide redress for constitutional
violations.

Thus, while the two bodies of law are not

“precisely parallel”, there is a “general trend” to incorporate
§ 1983 law into Bivens suits. See Chin v. Bowen, 833 F.2d 21, 24
(2d Cir. 1987).
B. Analysis
As this Court stated in its previous Opinion, the Eighth
Amendment prohibits prison officials from unnecessarily and
wantonly inflicting pain in a manner that offends contemporary
standards of decency. See Hudson v. McMillian, 503 U.S. 1, 8
(1992).

When reviewing Eighth Amendment excessive force claims,
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courts must determine whether the “force was applied in a goodfaith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Id. at 7.

Whether the force

applied was excessive requires the examination of several
factors including:
(1) the need for the application of force; (2) the
relationship between the need and the amount of force
that was used; (3) the extent of injury inflicted; (4)
the extent of the threat to the safety of staff and
inmates,
as
reasonably
perceived
by
responsible
officials on the basis of the facts known to them; and
(5) any efforts made to temper the severity of a forceful
response.
Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting
Whitley v. Albers, 475 U.S. 312, 321 (1986)).
Although the extent of an inmate’s injury is relevant to an
Eighth Amendment analysis, “there is no fixed minimum quantum of
injury that a prisoner must prove that he suffered through
objective or independent evidence in order to state a claim for
wanton and excessive force.” Id. at 104.

Thus, the inquiry must

focus on the extent of the force and the circumstances in which
it is applied, not on the resulting injuries. Id. at 108; see
also Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002).
However, the Eighth Amendment does not protect against a de
minimis use of physical force, so long as it “is not of a sort
‘repugnant to the conscience of mankind.’” Brooks, 204 F.3d at
107 (quoting Hudson, 503 U.S. at 9–10).

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In his Amended Complaint, Plaintiff does not allege any
additional facts which change the Court’s previous conclusion
that Plaintiff has not stated an excessive force claim.

The

Amended Complaint is virtually identical to the original
Complaint, with only minor, non-substantive additions.

The

accompanying memorandum of law similarly does not contain any
new facts, only legal conclusions.

See James v. City of Wilkes–

Barre, 700 F.3d 675, 679 (3d Cir. 2012) (In reviewing the
sufficiency of a complaint under Rule 12(b)(6), “we disregard
rote recitals of the elements of a cause of action, legal
conclusions, and mere conclusory statements.”).

The only “new”

information provided by Plaintiff are affidavits from fellow
prisoners, none of whom witnessed the incident between Plaintiff
and Defendant.

Instead, two of the prisoners simply detail the

version of the incident relayed to them by Plaintiff and the
third prisoner details previous incidents he has had with
Defendant Dixon.

(Am. Compl., Ex. D-F, ECF No. 36-3.)

None of

these affidavits or the minor additions to the factual
allegations have any impact on the Court’s prior determination
that Plaintiff has not stated a constitutional violation.
In short, for all of the reasons discussed in this Court’s
July 7th Opinion and Order, Plaintiff’s excessive force claim
must be dismissed.

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III.

CONCLUSION
For the foregoing reasons, the Amended Complaint will be

dismissed in its entirety.

Generally, “plaintiffs who file

complaints subject to dismissal under [§ 1915A] should receive
leave to amend unless amendment would be inequitable or futile.”
Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.
2002).

Here, Plaintiff has had two opportunities to provide

facts which would support an excessive force claim.

Both times

Plaintiff has alleged almost identical facts which clearly do
not state such a claim.
futile.

As such, any further amendment would be

Id.

An appropriate Order follows.

Dated: February 21, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge

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