COFIELD v. UNITED STATES DEPARTMENT OF JUSTICE et al

Filing 21

OPINION. Signed by Judge Renee Marie Bumb on 2/3/2016. (dmr)(n.m.)

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January 28,

2015,

the U.S.

District Court for the District of

Columbia transferred the case to the District of New Jersey
because Plaintiff’s claims arose out of events that occurred
while he was imprisoned at the Federal CorrectionaJ Institution
(“FCI-Fairton”)

in Fairton,

N.J.

(See,

Order Granting Motion to Transfer,

Memorandum Opinion and

ECF No.

11.)

Defendants seek dismissal of the complaint under Federal
(lack of subject matter

Rule of Civil Procedure 12(b) (1)
jurisdiction),

and 12(b) (6)

relief may be granted)

(failure to state a claim upon which
(1)

for the following reasons:

lack of

jurisdiction under the doctrine of derivative jurisdiction;

(2)

a federal inmate cannot bring FTCA claims for alleged work—
related injuries and subsequent medical treatment for such
injuries because the IACA provides the exclusive remedy;

(3)

judicial review over IACA claims are limited to review of
procedural safeguards and for abuse of discretion;

(4)

Bivens

claims may not be brought against federal agencies or federal
officials sued in their official capacities;

(5)

the complaint

fails to state a Bivens claim against any individual defendant
because Plaintiff has not alleged the personal involvement of
any individual in a constitutional violation;

(6)

Plaintiff

fails to state an Eighth Amendment claim for deliberate
indifference to a serious medical need;

(7)

Plaintiff fails to

state a Due Process claim for his placement in administrative
2

segregation;

(8)

Plaintiff fails to state an Eighth Amendment

claim for conditions of confinement including triple—ceiling,
sleeping on the floor or being housed with a sick inmate;

(9)

Plaintiff’s defective detainer claim is barred by Heck v.
Humphrey; and

(10)

a Due Process claim based on deprivation of

property is not actionable unless no post—deprivation remedy is
available.

Plaintiff did not file an opposition to the motion to

dismiss.
I.

BACKGROUND

Plaintiff is a recreational litigant,

having filed

approximately 125 cases in federal court.2 See Cofield v.
14-2637(RMB),

2014 WL 1745018

Alabama Public Service Com’n,
1991)

(D.N.J. Apr.
936 F.2d 512,

30,

2014);

514—15

U.S.,

Cofield v.

(11th Cir.

(affirming district court’s dismissal of seven civil

actions as frivolous.)

In his complaint,

Plaintiff alleged that

the Defendants who were employed as case managers,
employed in Medical & Health Services,
Services,

counselors,

employed in Food

and Inmate Systems Staff “were fully aware” that

Plaintiff was totally and permanently disabled prior to and
during incarceration.

(ECF No.

1-1 at 6,

¶1.)

He further alleged

Defendants knew or should have known that he was not able to
work and should not be assigned any job within the FBOP.

2

See Public Access to Court Electronic Records (“PACER”)
available at
https: //www.pacer.gov/findcase.html
3

(Id.,

91

2.)

On March 8,

2012,

Dr.

Ruben B.

Morales signed a Medical Duty

Status Form indicating Plaintiff was not cleared for food
service and “Not Medically Cleared---Permanent.”

(Id.,

¶5.)

Plaintiff was assigned to work in Food Service at FCI
Fairton by “Counselor and Classification Staff.”

(Id.,

¶7.)

A

job was created especially for Plaintiff “by the Warden and
other staff.”

(Id.)

The job required Plaintiff to take food

trays from inmates seven days a week,

standing two to four hours

and lifting up to fifty pounds at least twice a week,

at a time,

despite Plaintiff’s permanent back,
with permanent nerve damage.

(Id.)

left leg,

Plaintiff was required to

work in this job assignment from February 24,
22,

2012.

and hand injuries

2012 through March

(j4:)

Plaintiff fell on two occasions while working and reported
that he suffered pain from his injuries.

(Id.)

Plaintiff was not

evaluated until he “went on writ and was seen by State of MD
doctors

.

swelling,

.

.

and others for back swelling,

left shoulder pains,

right hand swollen,

swelling on left side jaw-with TMJ-Lockjaw,
resulted from
8.)

[Plaintiff’s]

spasms,

left leg
cracking and

permanent.

falls at FPC—Fairton,

NJ.”

.

.

[a]ll

(Id.,

Plaintiff received no medical treatment for four to six

months,

although he filed 30 to 60 Sick Calls and complaints

4

91

about his accident.

(Id.,

¶9)3

Plaintiff never received any

decision on his tort claims from the FPI-Inmate Claims
Examiners’

Office.

(Id.)

In Count 2 of his complaint,

Plaintiff alleged he was

“illegally and unlawfully placed in Admin.
based upon a defective,
or Criminal Judgment,

State Court Sentencing Order

.“

(Id.

at 10,

¶12.)

2012 through April 20,

2012 through May 3,

or the SHU,

that violated MD State laws

Criminal Rules 32(k) (1)
that from April 6,

unsigned,

Seq.

2012,

[and]

Federal

He further alleged

2012,

and April 30,

he was housed with two other inmates

in a cell built for only two inmates,

constituting cruel and

unusual punishment and violation of a BOP Program Statement.
(Id.)

As a result,

Plaintiff had to sleep on the floor,

and he

also became sick after exposure to one of the inmates who had a
serious infection.

(Id.)

Plaintiff alleged that Defendants violated federal laws,
FBOP policy,

and Plaintiff’s due process rights by allowing the

County of Baltimore,
jurisdiction,

Maryland to file a detainer without

based on a Judgment and Commitment Order that was

not signed by a judge.

Plaintiff
was told to
Although he
seen for my
(Id.)

(Id.

at 10—11,

¶14.)

The Warden agreed

also alleged that the second time he fell at work, he
“see Medical at pill line.” (ECF No. 1—1 at 6, ¶8.)
was given pills that evening, Plaintiff was “never
actual injuries and on the job accident injuries.”

5

that the detainer was not valid but told Plaintiff the issue
should be handled by a court.

(Id.

at 11,

¶16.)

In Counts Three and Four of the complaint,
alleged that on or about March 22,
12,

2012,

Plaintiff

2012 and again on September
whose name is unknown,

an officer at FCI-Fairton,

packed some of Plaintiff’s property and prepared an inventory
list.

(Id.

at 12-13,

¶18.)

When Plaintiff received his property

from FCI-Fairton after being moved to another facility in July,
2012, much of Plaintiff’s property was missing.

(Id.

at 13,

¶.)

Plaintiff “filed some 50 complaints” about his missing property.
(Id.)

Plaintiff received no word on his complaints,

administrative remedies,

tort claims,

compensation for his property loss.

and other actions seeking

(Id.

at 14,

¶20.)

Plaintiff also added a fifth count to his complaint as an
addendum.

He alleged the defendant supervisors were liable for

failure to train and/or supervise.
relief,

(ECF No.

Plaintiff requested money damages.

¶21.
II.

DISCUSSION

A.

Motion for Protective Order

REDAC TED

1—1 at 15.)
(ECf No.

for

1—1, at 14,

B.

Doctrine of Derivative Jurisdiction

Defendants contend that when Plaintiff filed this action in
the Superior Court of the District of Columbia,

the court did

not have subject matter jurisdiction over his claims under the
Federal Tort Claims Act or the Inmate Accident Compensation Act.
Furthermore,

the Superior Court did not have personal

jurisdiction over the BOP officials at FCI—Fairton.

Thus,

Defendants conclude this Court did not have removal jurisdiction
under 28 U.S.C.

§ 1442(a) (1);

derivative jurisdiction,

and under the doctrine of

this action should be dismissed for

lack of jurisdiction.
The derivative jurisdiction doctrine provides that “a
federal district court is without proper removal jurisdiction if
the state court from which the case was removed lacked subject
matter jurisdiction,

even if the case could have originally been
7

filed in federal court.” Calhoun v.
256

(3d Cir.

382,

389

2012)

(1939) )

under 28 U.S.C.
•

.

.

.

Murray,

(citing Minnesota v.

305 U.s.

but “arguably still applies to removals

pertaining to federal officers,

Palmer v.

United States,

The doctrine has been abrogated for removals

§ 1441,

(citing Rodas v.

507 F. App’x 251,

Seidlin,

28 U.S.C.

656 F.3d 610,

City Nat’l Bank,

619

498 F.3d 236,

§ 1442.” Id.

(7th Cir.

246

(4th Cir.

The doctrine of derivative jurisdiction,

however,

essential ingredient to subject matter jurisdiction,
a defect in removal.

Id.

(quoting Rodas,

2011);
2007)).
is not an

it creates

656 F.3d at 6l9). Each

of Plaintiff’s federal claims could have been properly filed in
the first instance in this Court.

See Rodas,

656 F.3d at 619

(“Because the district court would have had jurisdiction over a
hypothetical complaint filed at the time it entered the judgment
now under review,

the fact that the state court lacked

jurisdiction over the case when it was removed has no
significance”); Baggs v.

Martin,

179 U.S.

where basis for removal was improper,

206,

209

(1900)

(even

court “plainly had

The district court cases cited by Defendants in support of
dismissal based on derivative jurisdiction do not discuss the
Third Circuit’s finding in Calhoun that derivative jurisdiction
is a procedural defect in removal, and not an essential
ingredient to subject matter jurisdiction. See Ray v. Allocco,
Civ. Action No. 2:12—CV—5698 ES—SCM), 2013 WL 4487469, at **l_2
(D.N.J. Aug. 19, 2013) (Report and Recommendation, adopted by
Letter Order, Feb. 11, 2014); Parisi v. U.S.; Civ. No. 12—3109
(RMB), 2013 WL 1007240, at *3 (D.N.J.); Telchin v. Perel, Civ.
No. 14—1848, 2014 WL 2451378, at *3 (D.N.J. June 2, 2014)
8

jurisdiction to entertain and determine the controversy.”)
Therefore,

this Court is not deprived of subject matter

jurisdiction despite the procedural defect in removal.
Calhoun,

508 F.

App’x at 256—57;

Rodas,

doctrine of derivative jurisdiction,
name,

See

656 F.3d at 619

(“The

despite its improvident

is best understood as a procedural bar to the exercise of

federal judicial power”) ; Wright,

Miller,

Federal Practice & Procedure § 3721
jurisdiction”

.

federal courts’

.

.

Cooper & Steinman,

(“removal is not a kind of

“it is a means of bringing cases within

original jurisdiction into those courts,

as is

commencement of a suit in federal court.”)
Moreover,

because Defendants created the procedural defect

by removing this case to federal court

(ECF No.

1)

rather than

moving to dismiss for lack of jurisdiction in the Superior Court
of the District of Columbia,

they waived Objection to the

procedural defect.

See Mackay v.

173,

(where the court had jurisdiction over the

176—77

(1913)

Uinta Development Co.,

subject matter “an irregularity was waivable,

229 U.S.

and neither it nor

the method of getting the parties before the court,

operated to

deprive it of the power to determine the cause.”)
Therefore,

the Court will deny Defendant’s motion to dismiss

based on lack of subject matter jurisdiction under the
derivative jurisdiction doctrine.

9

C.

Federal Tort Claims Act

(“FTCA”)

A federal inmate may not bring an action under the Federal
Tort Claims Act for work-related injuries in federal prison,

or

subsequent medical treatment for such injuries because the
Inmate Accident Compensation Act provides the exclusive remedy
for such negligence—based claims.

18 U.S.C.

Part 301;

385 U.S.

United States v.

Cooleen v.

LaManna,

248 F.

Demko,

App’x 357,

362

§ 4126;
149,

28 C.F.R.

151—54

(3d Cir.

(1966);

2007)

(“Federal prisoners seeking compensation for injuries sustained
during penal employment are limited to the remedy provided by 18
U.S.C.

§ 4126.”))

“Section 4126 is also the exclusive remedy

when a work—related injury is subsequently aggravated by
negligence and malpractice on the part of prison officials.”
Cooleen,

248 F. App’x at 362

825 F.2d 1039,
Potope,
2013)

No.

1044

(6th Cir.

4:11—cv—497,

(quoting Wooten v.
1987));

United States,

see also Patterson v.

2013 WL 1314050

(M.D.

Pa.

(“Although Plaintiff challenged Defendants’

Mar.

28,

prior decision

to clear him tdwork in Food Services without proper medical
shoes to protedt his pre-existing foot injury,
of his medical care after the incident,
this claim”)

(citations omitted)

.

and the adequacy

the IACA still controls

Therefore,

the Court will

The IACA does not foreclose a Bivens claim because “there is
very little deterrent effect for constitutional harms within the
[IACA], and there is no alternative forum where the alleged
constitutional violation could be addressed.” Harper v. P.
10

dismiss Plaintiff’s FTCA claims6 without prejudice.

Plaintiff may

amend the complaint if he can allege facts establishing a tort
claim unrelated to his work-related injuries,

and otherwise in

compliance with the requirements of the FTCA.
0.

Inmate Accident Compensation Act

(“IACA”)

A federal inmate may bring a claim under the IACA by
submitting an Inmate Claim for Compensation On Account of Work
Injury no more than 45 days prior to the inmate’s release but no
less than 15 days prior.

28 C.f.R.

§ 301.303(a).

Defendants

contend Plaintiff submitted his Inmate Claim for Compensation On
Account of Work Injury on August 13,
5],

2012

[ECF No.

19—1 at 25 n.

which is more than one month after Plaintiff’s release from

SOP custody.

Urbano, P.A., 342 F. App’x 380, 381 (10th Cir. 2009) (quoting
Smith v. United States, 561 F.3d 1090, 1103 (10th Cir. 2009));
Bagola v. Kindt, 131 F.3d 632, 645 (7th Cir. 1997) (finding IACA
did not preclude Bivens claims); Cooleen, 248 F. App’x at 362 n.
5 (3d Cir. 2007) (noting that other circuit courts addressing
whether 18 U.S.C. § 4126 [IACA] prevents plaintiffs from
bringing Bivens actions for work—related injury have found that
is does not, and the Third Circuit “decline[d] to find
otherwise. “)
6 The
court notes that the United States of erica is the only
proper defendant to an FTCA claim, and Plaintiff has not named
the United States as a defendant. See Huberty v. U.S. Ambassador
to Costa Rica, 316 F. App’x 120, 122 (FTCA claim properly
dismissed where plaintiff failed to name the United States as
defendant and failed to file a claim with the appropriate
administrative agency.) To state an FTCA claim, Plaintiff would
need to amend his complaint to add the United States of America
as a defendant.
11

An inmate may bring the IACA claim up to sixty days
following release if circumstances precluded the inmate from
submitting the documentation during the pre-release period.
C.F.R.

§ 301.303(f). An inmate may also bring a claim for

impairment up to one year after release,
Id.

28

for good cause shown.

Defendants contend the complaint does not allege any

circumstances that would support submission after the date of
Plaintiff’s release from 30P custody.
Plaintiff alleged that he filed a claim with the EPI-Inmate
Claims Examiners Office in August 2012.
present complaint,

At the time he filed the

he had “never received any reply back or

decision as to his claim and/or his tort claims that were filed
with the FBOP Defendants in Washington,
¶9.)

DC.”

(ECE No.

1-1 at 8,

The final result of Plaintiff’s administrative proceedings

under the IACA is unclear.
“The scope of judicial review of IACA awards is very
narrow,

being limited to the procedural safeguards and

assessment for abuse of discretion.” Peguero v.
Industries,
(D.N.J.

Apr.

Civ.
30,

Action No.
2014)

14—2371(RN3),

(citations omitted)

Unicor

2014 WL 1716448
.

A plaintiff must

assert facts showing “‘that he was denied procedural due process
or the decision by the agency was so unsupported by the record
that it cannot qualify as rational/having a basis in evidence.”
Id.
12

Therefore,

the Court will dismiss Plaintiff’s IACA claim

without prejudice.

Plaintiff may amend the complaint if he can

allege facts supporting a violation of procedural due process or
abuse of discretion by the agency in addressing his IACA claim.
E.

Immunity from Bivens Claims

“Absent a waiver,

sovereign immunity shields the Federal

Government and its agencies from suit.” FDIC v.
471,

475

(1994)

(citations omitted)

.

Meyer,

There is no implied Bivens

cause of action directly against a federal agency.
85.

Similarly,

510 U.S.

Id.

at 484-

federal officials sued in their official

capacities are immune from suit.
Counseling Center,

933 F.Supp.

See

382,

388

(D.N.J.

Jan.

23,

1996)

(dismissing suit against federal agency employees in their
official capacities);
(1985)

Kentucky v.

Graham,

473 U.S.

159,

166

(a suit against a federal officer in his official

capacity is actually a suit against the United States)
Plaintiff’s Bivens claims against the Department of
Justice,

the Bureau of Prisons’

Federal Prison Industries/Inmate

Compensation Systems and Inmate Claims Examiners’

Office,

and

the federal employees/officials in their official capacities
will be dismissed based on immunity from Bivens claims.
F.

Failure to State a Bivens Claim Against an Individual
Defendant

13

“To survive a motion to dismiss,
sufficient factual matter,

a complaint must contain

accepted as true,

to

‘state a claim

to relief that is plausible on its face.’” Aschroft v.

Iqbal,

556 U.s.

662,

Twombly,

550 U.s.

dismiss,

a court can begin by “identifying pleadings that,

678

(2009)
544,

(quoting Bell Atlantic Corp.

570

(2007)).

When considering a motion to

because they are no more than conclusions,
the assumption of truth.” Id.
pleaded factual allegations,

v.

at 679.

are not entitled to

““When there are well-

a court should assume their

veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id.
Determining whether a complaint states a plausible claim
for relief is a context—specific task.

Id.

If the “well—pleaded

facts do not permit the court to infer more than the mere
possibility of misconduct,
not

the complaint has alleged—but it has

‘show[n]’—’that the pleader is entitled to relief.’” Id.

(quoting Fed.

R.

Civ.

P.

8 (a) (2) )

.

The elements of a Bivens

claim will vary with the constitutional provision at issue.

Id.

Bivens actions are the federal equivalent to suits brought
under 42 U.S.C.

§ 1983 against state actors whose conduct

violates a constitutional right.
Therefore,

Id.

(2009)

federal courts generally apply principles developed

in § 1983 cases to Bivens actions.
1402,

at 675-76

1408—09

(3d Cir.

1991)

.

Schrob v.

Catterson,

948 F.3d

“Government officials may not be
14

held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Iqbal,
U.S.

556

at 676.
a.

Claims Against BOP Director In His
Individual Capacity.

There are no allegations in the complaint suggesting how
the 30P Director was personally involved in any alleged
constitutional violation.

Therefore,

the Court will dismiss the

Bivens claims against the 30? Director without prejudice.
Ruiz v.
2012)

Federal Bureau of Prison,

(per curiam)

481 F.

App’x 738,

741

See

(3d Cir.

(dismissing 30? Director as a defendant

because plaintiff did not allege any personal involvement in a
constitutional violation;

and a Bivens claim cannot be premised

upon respondeat superior liability.)
b.

Claims Against Martinez and Cruz

When a complaint is silent as to a defendant,
his name appearing in the caption,

except for

the complaint is properly

dismissed even under the liberal construction given to pro se
complaints.
585
1207

(W.D.

See Banks v.

Pa.

(7th Cir.

App’x 586,

2008),

4

only in the caption)
Martinez & Mr.

quoting Potter v.

1974);

589 n.

County of Allegheny,

Strunk v.

Clark,

568 F.Supp.2d 579,
497 F.2d 1206,

Wells Fargo Bank,

N.A.,

614 F.

(affirming dismissal of defendants named
.

In the caption,

Plaintiff names “David

Cruz Inmate Systems Supervisor.” Plaintiff does

15

not mention Martinez or Cruz anywhere else in the complaint.
Therefore,

the Court will dismiss Martinez and Cruz from this

action without prejudice.
c.

Eighth 1mendment Claims

The Court notes that Defendants did not specifically
address whether Plaintiff stated an Eighth Amendment claim based
on his allegations that Defendants assigned him a job despite
their knowledge that he was disabled from any work,
to his permanent injury.

Defendants,

however,

and this led

contend that

Plaintiff did not allege a cognizable Bivens claim against any
individual defendant.

Thus,

the Court will address the work

assignment claim.
A plaintiff can state an Eighth Amendment claim based on
conditions of confinement when he alleges prison officials were
deliberately indifferent to the fact that his work assignment
was inappropriate due to his existing medical condition.
Williams v.

Norris,

type of case,

148 F.3d 983,

[the prisoner]

beyond an inmate’s strength,
or unduly painful’”

F.3d 1154,

1156

F. App’x 436,

(8th Cir.

1998)

(“In this

the plaintiff must prove that the defendants

knowingly compelled

health,

987

See

(8th Cir.

440—41

‘to perform labor that is

dangerous to his or her life or
(quoting

1998));

(3d Cir.

144

see Johnson v.

2008)

Townsend,

(complaint was insufficient

to bring work assignment “within the Eighth Amendment’s
16

314

prohibition against cruel and unusual punishment absent any
indication that

[the plaintiff]

was compelled to perform

physical labor that was beyond his strength,
or health,

or caused undue pain,

endangered his life

or where there is no allegation

that the work assignment was punitive in nature”)

(citations

omitted)
Plaintiff alleged he was assigned to work in Food Services
despite that fact that “Defendants each from the Case
Management,
Services,

Counselors,

Inmate Systems staff,

Plaintiff Dr.
disabled

Medical & Health Services,

.

.

Keenan Cofield,
(ECF No.

.“

were fully aware,

Food
that the

was totally and permanently

1—1 at 6,

911.)

Plaintiff also alleged

“Defendants have long documented” his medical condition and his
inability to perform any work.

(Id.

at 6—7,

91913—4)

cited to a medical record dated September 16,

.

2011,

Plaintiff
which shows

he was not cleared for food service and “Not Medically Cleared
-—

Permanent.”

-

()

Plaintiff also cited and attached to his complaint a March
8,

2012 Medical Duty Status Form signed by Dr.

Ruben 3.

Morales,

containing the same medical restrictions as in the September
2011 record.

(Id.

at 7,

¶5.)

assignment in food Service,
while performing his job.
suffered “back swelling,

Nonetheless,

he was given a job

and he fell twice on wet floors

(Id.

at 8,

spasms,

¶7.)

Plaintiff alleged he

left leg swelling,
17

left

shoulder pains,

right hand swollen,

left side jaw—with TMJ-Lockjaw,
from my falls at FPC—Fairton,

cracking and swelling on

permanent” and [a]ll resulted

NJ.”

(Id.,

¶8.)

Plaintiff must allege facts that would Plausibly show a
particular defendant had actual knowledge of his work
restrictions but acquiesced in forcing him to work beyond those
restrictions.
(8th Cir.

Compare Williams v.

1998)

Norris,

148 F.3d 983,

985—86

(denying summary judgment on Eighth Amendment

claim where Plaintiff had evidence that he informed each
defendant of his medical restriction and requested a medical
consultation before he was assigned the job,

but he was forced

to start the job before his requested medical records arrived at
the prison.)

Plaintiff stated only that unidentified persons

‘were fully aware” that he could not perform any job due to his
total,

permanent disability,

and based on his medical

restrictions assigned in 2011 and March 8,

2012.

Although Plaintiff may sue individuals whom he cannot yet
identify,

he must still allege facts showing the individual’s

personal involvement in a constitutional violation.

It is not

enough to allege certain classes of persons “were fully aware”
of Plaintiff’s medical disability without alleging how each
individual would have gained knowledge of

(1)

the fact that he

received benefits for total and permanent disability before
incarceration;

(2)

the fact that he was medically restricted
18

from work by a physician from another correctional facility in
2011;

and

(3)

that Dr.

work on March 8,

2012.

Morales medically restricted him from
In addition to alleging how each

defendant was “fully aware” of these facts,

Plaintiff must also

allege how each individual acquiesced in forcing him to work
beyond his medical restrictions.

For these reasons,

the Court

will dismiss without prejudice the Eighth Amendment work
assignment claims against the defendants in their individual
capacities.
Plaintiff also alleged that he received inadequate medical
care in violation of the Eighth Amendment.

To state an

inadequate medical care claim under the Eighth Amendment’s
proscription against cruel and unusual punishment,

an inmate

must allege facts showing the defendant’s conduct constituted
“unnecessary and wanton infliction of pain” or that the
defendant was deliberately indifferent to the inmate’s serious
medical needs.

Estelle v.

Gamble,

429 U.S.

97,

104

(1976)

.

“A

medical need is “serious,” in satisfaction of the second prong
of the Estelle test,

if it is “one that has been diagnosed by a

physician as requiring treatment or one that is so obvious that
a lay person would easily recognize the necessity for a doctor’s
attention.” Monmouth County Corr.
F.2d 326,
f.Supp.

347

456,

(3d Cir.
458

1987)

Inst.

Inmates v.

(quoting Pace v.

(D.N.J.1979),

aff’d,
19

Lanzaro,

Fauver,

649 F.2d 860

479

(3d Cir.

834

1981) )

.

Denial of or delay in treatment that causes unnecessary

and wanton infliction of pain may also constitute a serious
medical need.
addition,

Id.

(citing Estelle,

429 U.S.

considered serious.” Id.

Corr.

95 F.Supp.2d 217,

Med.

.

“In

where denial or delay causes an inmate to suffer a

life-long handicap or permanent loss,

County,

at 103)

Serv.,

the medical need is

(citations omitted); Andrews v.
227

(D.N.J.

493 F.Supp.2d 740,

2000)
745

(same);

(D.Del.

Camden

Price v.

2007)

(same).

An allegation of medical malpractice or simple negligence does
not rise to the level of a constitutional violation.
Gillis,

372 f.3d 218,

235

(3d Cir.

Spruill v.

2004)

Plaintiff alleged the delay in medical treatment for months
after he fell at work caused him permanent injury.
at 8,

¶8.)

(ECE No.

1-1

He further alleged “the Plaintiff filed over 30 to 60

Sick Calls and complaints about his accident and no medical
treatment for 4 to six months.”

(Id.

at 8,

¶19.)

Plaintiff

admitted that “months later” a physician’s assistant examined
him but did not perform x-rays or the type of extensive
examination he was provided by other state and private medical
professionals.

(Id.

at 9,

¶10.)

Plaintiff asserted the delay and

denial of medical treatment caused his injuries,
damage and lockjaw,

to be permanent.

20

(Id.)

including nerve

Plaintiff asserted that he complained about his lack of
treatment to various “AW’s,7 Warden,
No.

1—1 at 9,

¶10.)

Health Services etc.”

(BCE

He did not allege that any specific prison

medical professional refused to evaluate or treat him upon his
request or even that any specific prison employee prevented him
from seeing a prison medical professional.
There is no respondeat superior liability for supervisory
officials.
137

See Dickerson v.

(3d Cir.

2011)

301 Graterford,

(per curiam)

453 F.

App’x 134,

(liability of supervisory prison

officials cannot be predicated solely on the operation of
respondeat superior)
1195,

1207

(3d Cir.

(citing Rode v.
1988))

.

Dellarciprete,

Additionally,

845 F.2d

prison officials are

not liable for Eighth Amendment inadequate medical care claims
simply because they “had some direct involvement with
inmate’s]

grievances” because there is no constitutional right

to a grievance procedure.
728,

729

[the

(8th Cir.

1991))

Id.
.

(citing Elicka v.

Alba,

932 f.2d

Based on his filing of a grievance,

Plaintiff has failed to state an Eighth Amendment inadequate
medical care claim against Warden J.T.

Shartle in his individual

capacity.
Personal involvement in an alleged constitutional violation
can be shown by personal direction,

or actual knowledge and

The Court assumes “AW” stands for Assistant or Associate
Warden.

acquiescence.

Rode,

845 F.2d at 1207.

“Allegations of

participation or actual knowledge and acquiescence,
must be made with appropriate particularity.” Id.
Plaintiff must identify a particular person
his/her name is unknown at this time)

at 1207-08.
(even if

who was aware that his

Sick calls and other requests for medical treatment,
slip and fall injuries,

however,

after his

were denied or deliberately delayed,

and

that such person knew that he had not received any medical
treatment from prison medical providers.

Plaintiff might do this

by alleging who received his “Sick Calls” or from whom he
requested medical treatment
administrative grievances)

(as opposed to with whom he filed
but was denied.

The Court will

dismiss this Eighth Amendment claim without prejudice,

allowing

Plaintiff to amend the complaint if he can allege additional
facts showing the personal involvement of a defendant,

including

actual knowledge of and acquiescence in a specific denial of or

delay in treatment of an injury.
Plaintiff also alleged an Eighth Amendment violation based
on his conditions of confinement in administrative segregation
from April 6,

2012 through April 20,

through May 2 or 3,

2012.

(ECf No.

2012,

1-1 at 10,

unconstitutional conditions were that:

(1)

two other inmates in a cell built for two;
to sleep on the floor;

and

(3)

and April 30,
¶12.)

2012

The alleged

he was housed with
(2)

many times he had

Plaintiff became sick when “the
22

3rd inmate who had a serious infection that required me and the
other inmate to get medical treatment and meds.”

(Id.)

on the floor aggravated his back and leg injuries.

Sleeping

(Id.)

Defendants contend that Plaintiff’s allegations against
“triple-ceiling”,

being housed with a sick inmate,

and sleeping

on the floor for a brief period do not raise a claim of
constitutional magnitude.

Defendants further assert Plaintiff

did not identify any SOP official who was actually aware of a
condition that imposed a serious risk of harm to Plaintiff.
“[T]o state an Eighth Amendment conditions of confinement
claim,

[a]

[p]laintiff must allege facts plausibly showing that

his conditions were so objectively severe that they deprived him
of a basic human need and that the defendants were deliberately
indifferent to the particular harm that

[the]

suffered.” See Velazquez v.

Zickefoose,

Civ. Action No.

2459(RMB),

at *8

2014 WL 6611058,

Farmer v.

Brennan,

511 U.S.

McKinney,

509 U.S.

25,

294,

305

32

825,

11-

(emphasis in original)
834—37

(1993);

[p]laintiff

(1994);

Wilson v.

(citing

Helling v.

Seiter,

501 U.S.

(1991))

Absent any allegation of specific harm,
for less than a month,

“triple—bunking”

does not constitute the kind of serious

deprivation of basic human needs required to establish an Eighth
Amendment violation.
Cir.

2005)

North v. White,

(citing Griffin v. Vaughn,
23

152 F.

App’x 111,

112 F.3d 703,

709

113

(3d

(3d Cir.

1997))

.

Here,

in addition to ‘triple-celling,” Plaintiff alleged

that the overcrowding forced him to sleep on the floor at times,
which aggravated his injuries.

Plaintiff did not indicate

whether he was provided a mattress or whether he had any
particular medical order regarding his bedding.
Plaintiff also alleged he became sick when he was housed
with a sick inmate,

and he was required to take medication to

avoid infection from the inmate.
with medication,

Because Plaintiff was provided

and he did not otherwise allege how there was a

serious risk of harm to his health from exposure to the inmate
or from taking the medication,

Plaintiff has not alleged

deliberate indifference based on this condition of confinement.
See Oliver v.
287,

289

Bucks County Corr.

(3d Cir.

2006)

facility—Warden,

181 f. App’x

(although there was a question whether

the prisoner was at some risk of catching MESA,

the record was

insufficient to establish the warden was aware of a serious risk
and indifferent to it)
While Plaintiff may be able to allege an Eighth Amendment
conditions of confinement claim by providing additional facts,
the Court will dismiss his claims regarding triple—celling,
sleeping on the floor,
prejudice.

housing with a sick inmate without

Plaintiff must allege each defendant’s personal

involvement in the alleged constitutional violation.
v.

Brennan,

511 U.S.

825,

837

(1994)
24

See farmer

(“a prison official cannot

be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety;

the

official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.”)
Assignment to Administrative Segregation

G.

To state a due process claim,

a plaintiff must establish

that he was deprived of a liberty interest.
200 E.

App’x 157,

283 F.3d 506,

522

158

(3d Cir.

(3d Cir.

2006)

2002))

.

Riley v.

Carroll,

(citing Fraise v.

Terhune,

A liberty interest can arise

from the Due Process Clause or by state-creation.

Id.

If an

inmate’s degree of confinement is within the sentence imposed,
and the conditions he is subject to do not otherwise violate the
Constitution,

there is no liberty interest protected by the Due

Process Clause.
Generally,

Id.
placement in administrative segregation will not

create a liberty interest.
f.3d 141,

150

(3d Cir.

Id.

2002))

.

(citing Torres v.

fauver,

292

Administrative custody for

periods as long as fifteen months is not an atypical or
significant hardship in relation to the ordinary incidents of
prison life so as to create a protected liberty interest.
(citing

iffin y

Vaughn,

112 F.3d 703,

25

708

(3d Cir.

Id.

1997))

Plaintiff alleged he was housed in administrative
segregation from April 6,
notice and a hearing,
(ECf No.

1-1 at 10-11,

2012 through May 3,

2012,

without

in violation of his due process rights.
¶Tl2,

15.)

Plaintiff’s stay in

administrative segregation was far less fifteen months,

which

the Third Circuit has found not to constitute an atypical or
significant hardship that creates a liberty interest under the
Due Process Clause.

Therefore,

he has failed to state a Due

Process claim based on his placement in administrative
segregation.

The claim will be dismissed with prejudice because

amendment to the complaint will not cure the failure to allege a
protected liberty interest.
293 F.3d 103,

114

(3d Cir.

See Grayson v.
2002)

Mayview State Hosp.,

(dismissal must be without

prejudice if amendment of the complaint may cure the
deficiency)
H.

Defective Detainer Claim

Plaintiff alleged Defendants violated his right to due
process by enforcing the County of Baltimore’s detainer against
him,

where the detainer was based on an unsigned Sentence and

Commitment Order.

(BCE No.

1—1 at 10-11,

¶9114,

assert Plaintiff alleged this same claim,
documents are illegal or invalid,
the District of Maryland,

Defendants

that the detainer

in two prior lawsuits filed in

without success.

26

16.)

y

SiOnificantl
13-3334,

in lenv.StateN

2013 WL 6062005

(D.Md

Nov.

15,

2013)

Civ.

No.

CCB

the dist

court dismissed Plaintiff’5 action for damages under 42 U.S.C
1983

Without

§

prejudiCe.

To the extent that plaintiffs take issue
with the legality of their confinement
complaining that warrants and orders were
illegally issued by state court clerks
without judicj involvement, their action
shall be dismissed without prejudice
512
Pursuant to
(1994), a civil rights claimant cannot
recover damages for “allegedly
nal conviction or
t,
imprisonmen
unconstitutio
or for other harm caused by actions whose
unlawfulness Would render a conviction or
sentence invalid,!! unless he first proves
that “the conviction or sentence has been
or called
reversed on direct appeal,
into questjo0 by a federal court’s issuance
of a writ of habeas corpus’! filed under 28
Id. at 486—87. These
U.S.C. § 2254
allegat05 directly related to the
ality of plaintiffsr state
constitution
convictions and success in this civil rights
action would vitiate the legality of those
sentences or convictions. Thus, these claims
may not proceed at this time under Heck.
.

Here,

the basis for Plaintiff’8 allegatj0n that Defendants

violated his rights by enforcing an invalid detainer is that the
Sentence and Coitment Order itself Was invalid
1-1 at 11,

¶14

(See ECF No.

(“judgment and comitment order is not valid and

no sentence is legally imposed until,
Judgme & Coitment Order.”))

the Judge signs his

This directly calls into

questj0 the validity of his State Court conviction.

27

Plaintiff

has not plead facts showing that he satisfied the favorable
termination rule of Heck.

Therefore,

this claim will be

dismissed without prejudice as Heck-barred.
I.

Due Process Claim for Deprivation of Property

Plaintiff alleged that an unidentified officer at FCI
Fairton packed his belongings upon his transfer to another
facility,

and when his belongings arrived,

property was missing.

some of Plaintiff’s

Plaintiff did not receive a response to

his many grievances or his tort claims concerning his lost
property.
Defendants contend Plaintiff failed to state a Due Process
claim because such a claim is not actionable unless no adequate
Defendants assert there

post—deprivation remedy is available.

are adequate remedies for lost property under 31 U.S.C.

§ 3723

(small claims for privately owned property damage or loss),

3724

(claims for damages caused by investigative or law enforcement
officer of the Department of Justice)
Bureau of Prisons,

552 U.S.

214,

,

citing Ali v.

228 n.7

(2008)

Federal

and other cases.

Plaintiff has not alleged sufficient facts to establish
that the post-deprivation remedies he sought for his loss of
property are not adequate.
981

(3d Cir.

2006)

See Jordan v.

Horn,

165 F. App’x 979,

(absence of final response to denial of

grievance did not render inadequate an otherwise adequate post
deprivation remedy)

.

Although Plaintiff alleged he did not
28

receive any response to his complaints or tort claims,

he did

not provide sufficient information for the Court to determine
that lie properly filed such remedy requests8 or that he was
entitled to a response within a particular time frame,
inadequate any available remedy.

Therefore,

rendering

the Court will

dismiss Plaintiff’s Due Process claim for deprivation of
property without prejudice.
J.

Failure to Supervise and Failure to Train

Defendants do not specifically address Plaintiff’s failure
to supervise and failure to train claims in Count Five of the
Complaint.

The Court may,

however,

review and sua sponte dismiss

any claim made by a prisoner in a civil action where the
prisoner has failed to state a claim upon which relief may be
granted.

See 28 U.S.C.

In Barkes v.
Court of Appeals,

§ l9l5A(b) (1)

First Corr.

Medical,

Inc.,

the Third Circuit

in a § 1983 case addressing whether Supreme

Court precedent9 abolished supervisory liability,

held that:

a state official, by virtue of his or her
own deliberate indifference to known
deficiencies in a government policy or
procedure, has allowed to develop an
environment in which there is an
8

For example, Defendants note that Plaintiff could not recover
for loss of personal property by a SOP officer under the FTCA
because 28 U.S.C. § 2680(c) forecloses such claims. See Ali v.
Federal Bureau of Prisons, 552 U.S. 214, 228 (2008)
Plaintiff
has not alleged that he filed a claim under 31 U.S.C. § 3723,
3724.
Ashcroft v. Iqbal, 556 U.S. 662 (2009)
.

29

unreasonable risk that a constitutional
injury will occur, and that such an injury
does occur.
Liability in such a
situation is
imposed not vicariously
but based on the supervisor’s own
misconduct, because to exhibit deliberate
indifference to such a situation is a
culpable mental state under the Eighth
Amendment.
.

.

.

766 F.3d 307,

319

on other grounds,

.

.

.

(3d Cir.

2014)

Taylor v.

(emphasis in original)

Barkes,

135 S.Ct.

2042

(2015)

court held that the standard it announced in Sample v.
885 E.2d 1099,

1119

(3d Cir.

1989)

reversed
.

The

Diecks,

for imposing supervisory

liability based on an Eighth Amendment claim was consistent with
Supreme Court precedent.
In Sample,

Id.

the Third Circuit held that the elements of a

claim for supervisory liability or liability for failure to
train are:

(1)

an existing policy created an unreasonable risk

of constitutional injury;

(2)

the supervisor was aware of the

potential for the unreasonable risk;
indifferent to the risk;
policy or practice.

and

(4)

(3)

the supervisor was

the injury resulted from the

885 F.2d at 119.

In Barkes,

the Third

Circuit also noted that “the level of intent necessary to
establish supervisory liability will vary with the underlying
constitutional tort alleged.”
Additionally,
U.S.

51,

to train.

(2011)

the Supreme Court in Connick v.

Thompson,

563

discussed the standard for liability for failure

“A pattern of similar constitutional violations by
30

untrained employees is

‘ordinarily necessary’

to demonstrate

deliberate indifference for purposes of failure to train.” Id.
at 62
U.s.

(quoting Board of Comm’rs of Bryan County v.
397,

409

(1997))

.

Brown,

520

The range of “single incident” liability

for failure to train is narrow.
In the present complaint,

Id.

at 64.

Plaintiff did not meet the

pleading standard required for his supervisory and failure to
train claims.

Instead,

Plaintiff alleged only conclusory

allegations that suggest vicarious liability of the supervisory
defendants,

regardless of the constitutional claim at issue.

The allegations in the complaint are insufficient to state a
claim for a supervisory liability or for failure to train.
Therefore,
III.

these claims will be dismissed without prejudice.

CONCLUSION

For the reasons discussed above,
filed herewith,

in the accompanying Order

the Court will dismiss with prejudice Bivens

claims against the following defendants:
Justice,
FBOP)

,

Federal Bureau of Prisons

U.S.

Department of

(and divisions within the

and each of the federal officials and employees in their

official capacities.

The Court will dismiss the Due Process

claim related to Plaintiff’s placement in administrative
segregation with prejudice.

The Court will dismiss the remainder

of the claims in the complaint without prejudice.

31

s/Renée Marie Bumb
RENEE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated:

February 3,

2016

32