MILLER v. SAMUELS et al

Filing 10

OPINION. Signed by Judge Noel L. Hillman on 5/19/2016. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
MARK MILLER,
:
:
Plaintiff,
:
Civ. No. 15-5518 (NLH)
:
v.
:
OPINION
:
CHARLES E. SAMUELS, et al.,
:
:
Defendants.
:
___________________________________:
APPEARANCES:
Mark Miller, # 62645-066
FCI Fort Dix
P.O. Box 2000
Joint Base MDL
Fort Dix, NJ 08640
Plaintiff Pro se
HILLMAN, District Judge
On or about July 13, 2015, Plaintiff Mark Miller, a
prisoner confined at the Federal Correctional Institution
(“FCI”) in Fort Dix, New Jersey, filed this civil action
asserting claims pursuant to Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971). (ECF No. 1).

Plaintiff paid the required filing fee

and, on October 21, 2015, the Complaint was dismissed as a
result of this Court’s sua sponte screening for failure to state
a claim upon which relief may be granted. See 28 U.S.C. § 1915A
(actions in which prisoner seeks redress from a governmental
defendant).

On or about November 16, 2015, Plaintiff filed an
Application to Reopen and an Amended Complaint (ECF No. 7), and
the case was reopened for review by a judicial officer.

At this

time, the Court must review the Amended Complaint to determine
whether it should be dismissed as frivolous or malicious, for
failure to state a claim upon which relief may be granted, or
because it seeks monetary relief from a defendant who is immune
from such relief. See 28 U.S.C. § 1915A.

For the reasons set

forth below, Plaintiff’s retaliation claim against Assistant
Warden Dynan will proceed past § 1915A screening; and the
remaining claims in the Complaint will be dismissed.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The factual background of this case is set forth in the
Court’s October 21, 2015 Opinion (ECF No. 7) and need not be
repeated in detail here.

In relevant part, Plaintiff states

that on January 30, 2015, he was placed in the Security Housing
Unit (“SHU”) as the result of an incident report filed against
him, which was later dismissed. (Am. Compl. 3, ECF No. 7).
Plaintiff’s original Complaint, which the Court construed
as setting forth causes of action for due process violations and
retaliation — was dismissed for failure to state a claim. See
(Opinion, Oct. 21, 2015, ECF No. 4).

Specifically, this Court

found that, because Plaintiff did not have a liberty interest in
his placement, any substantive due process claim as a result of
2

his transfer to the SHU was dismissed with prejudice.

This

Court also found that Plaintiff had failed to allege that he
engaged in any constitutionally protected conduct or that a
causal link existed between said protected conduct and his
transfer to the SHU; therefore, he had not set forth a claim for
retaliation.

Plaintiff’s retaliation claims were dismissed

without prejudice.
In his Amended Complaint, Plaintiff names as defendants
three of the defendants who were named in the initial Complaint:
(1) Charles E. Samuels, Director of the Bureau of Prisons; (2)
J. Hollingsworth, Warden of FCI Fort Dix; and (3) SIS Officer
Bartell.

Plaintiff also adds Assistant Warden Dynan as a

defendant. (Am. Compl. 2, ECF No. 7).

The allegations of the

Amended Complaint relate either to Plaintiff’s transfer to the
SHU, the conditions of his confinement there, or events that
transpired while he was housed in the SHU. 1
Plaintiff divides his Amended Complaint into three
subsections: “(1) Post-Traumatic Stress Disorder; and Dysthymic
Disorder; (2) 8th Amendment Violation (Equal Protection Clause);
[and] (3) Retaliation (for exercising his 1st Amendment
Right)[.]” (Am. Compl. 3, ECF No. 7).

1

Plaintiff also submits a Petition to Submit Record and
Affidavit in Support of his Amended Complaint. (ECF No. 9).
Court has read and considered these documents.
3

The

It is evident from the section of the Amended Complaint
titled “Post-Traumatic Stress Disorder” (“PTSD”) that Plaintiff
means to assert a claim challenging the conditions of his
confinement as in violation of the Eighth Amendment’s
prohibition against cruel and unusual punishment. (Am. Compl. 35, ECF No. 7).

Specifically, Plaintiff asserts that “(1) he was

incarcerated under conditions posing a substantial risk of
serious harm, (2) the official was deliberately indifferent to
that substantial risk to his health and safety, and (3) the
official’s deliberate indifference cause[s] him harm.” (Am.
Compl. 4, ECF No. 7).
In the section of the Amended Complaint titled “The
Officials[’] Deliberate Indifference to the Risk Pose[d] by
Miller’s Continued Detention in the SHU[,]” Plaintiff continues
to describe the conditions of his confinement. (Am. Compl. 5,
ECF No. 7).

In addition, he also appears to assert a due

process violation. (Am. Compl. 6, ECF No. 7).
Finally, in the section of the Amended Complaint titled
“First Amendment Retaliation[,]” Plaintiff renews his claims of
retaliation, and also asserts an equal protection violation.
With respect to his equal protection claim, Plaintiff explains
that, while he was in the SHU, he was not allowed to visit with
his dying mother.

However, Plaintiff states that another

4

similarly situated inmate in the SHU was allowed visitation
privileges. (Am. Compl. 7-8, ECF No. 7).
Plaintiff seeks declaratory and injunctive relief (Am.
Compl. 9, ECF No. 7); however, he does not describe the nature
of the injunctive relief he seeks.

He also requests

compensatory and punitive damages in the amount of $500,000 and
$2.5 million, respectively, against each Defendant.
II.

STANDARD OF REVIEW

Per the Prison Litigation Reform Act, Pub.L. 104–134, §§
801–810, 110 Stat. 1321–66 to 1321–77 (Apr. 26, 1996) (“PLRA”),
district courts must review complaints in those civil actions in
which a prisoner is proceeding in forma pauperis, see 28 U.S.C.
§ 1915(e)(2)(B), seeks redress against a governmental employee
or entity, see 28 U.S.C. § 1915A(b), or brings a claim with
respect to prison conditions, see 42 U.S.C. § 1997e.

The PLRA

directs district courts to sua sponte dismiss any claim that is
frivolous, is malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief.
“[T]he legal standard for dismissing a complaint for
failure to state a claim pursuant to § 1915A is identical to the
legal standard employed in ruling on 12(b)(6) motions.” Courteau
v. United States, 287 F. App'x 159, 162 (3d Cir. 2008) (citing
Allah v. Seiverling, 229 F.3d 220, 223 (2000)).
5

That standard

is set forth in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009) and Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), as clarified
by the United States Court of Appeals for the Third Circuit.
To survive the court's screening for failure to state a
claim, the complaint must allege “sufficient factual matter” to
show that the claim is facially plausible. See Fowler v. UPMC
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.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308
n. 3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

“[A]

pleading that offers ‘labels or conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Where a complaint can be remedied by an amendment, a
district court may not dismiss the complaint with prejudice, but
must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34
(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)), cited
in Thomaston v. Meyer, 519 F. App'x 118, 120 n. 2 (3d Cir.
2013); Shane v. Fauver, 213 F.3d 113, 116–17 (3d Cir. 2000)

6

(dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v.
Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
Finally, pro se pleadings will be liberally construed.
Nevertheless, “pro se litigants still must allege sufficient
facts in their complaints to support a claim.” Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation
omitted); see also Haines v. Kerner, 404 U.S. 519, 520–21
(1972).
III. DISCUSSION
A. Claims against Defendants in their Official Capacities
As an initial matter, Plaintiff states that “[e]ach
defendant is sued in their individual and in his official
capacity.” (Am. Compl. 2, ECF No. 7).

However, “[a]n action

against government officials in their official capacities
constitutes an action against the United States; and Bivens
claims against the United States are barred by sovereign
immunity, absent an explicit waiver.” Lewal v. Ali, 289 F. App'x
515, 516 (3d Cir. 2008) (citing FDIC v. Meyer, 510 U.S. 471,
483, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Jaffee v. United
States, 592 F.2d 712, 717 (3d Cir. 1979)).

Accordingly,

Plaintiff’s Bivens claims against Defendants in their official
capacities are dismissed with prejudice.
To the extent Plaintiff seeks injunctive and declaratory
relief against Defendants in their official capacity, he fails
7

to specify the relief sought and, as discussed below, fails to
set forth a facially plausible claim for relief.

Therefore, his

claims for injunctive and declaratory relief against Defendants
in their official capacities are dismissed.
B. Conditions of Confinement Claim
“Prison officials have a duty under the Eighth Amendment to
provide humane conditions of confinement.” Farmer v. Brennan,
511 U.S. 825, 825, 114 S. Ct. 1970, 1973, 128 L. Ed. 2d 811
(1994); see also Rhodes v. Chapman, 452 U.S. 337, 344-46 (1981)
(holding that the Eighth Amendment prohibits the government from
inflicting “cruel and unusual punishments” on those convicted of
crimes).

To state a claim against a prison official for an

Eighth Amendment violation, a prisoner must allege an objective
and a subjective component.

Namely, “(1) ‘the deprivation

alleged must be, objectively, sufficiently serious;’ and (2) the
‘prison official must have a sufficiently culpable state of
mind.’” Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir.
2001) (quoting Farmer, 511 U.S. at 834); see also Wilson v.
Seiter, 501 U.S. 294, 294, 111 S. Ct. 2321, 2322, 115 L. Ed. 2d
271 (1991).
A plaintiff may satisfy the objective component of a
conditions of confinement claim if he can show that the
conditions alleged, either alone or in combination, deprive him
of “the minimal civilized measure of life's necessities,” such
8

as essential food, clothing, shelter, sanitation, medical care,
and personal safety. Rhodes, 452 U.S. at 347-48; Young v.
Quinlan, 960 F .2d 351, 364 (3d Cir. 1992).

The subjective

component is satisfied where “the official has acted with
‘deliberate indifference’ to inmate health or safety.”
Farmer, 511 U.S. at 826.

In other words, a prisoner must show

that “the official kn[ew] of and disregard[ed] an excessive risk
to inmate health or safety.” Id. at 837.
In the Amended Complaint, Plaintiff describes the
conditions of his confinement in the SHU.

Specifically, he

states that inmates “receive meals in their cells with no
communal time permitted,” that the recreational activities are
“virtually nonexisten[t],” that “basic supplies such as toilet
paper and soap are difficult to obtain,” that “sensory
deprivation” occurs due to poor lighting and “smoked windows to
prevent outside visibility,” that the medical care is “absent or
deficient,” and that inmates have “reduced access to personal
property . . . and limited ability to file administrative
grievances.” (Am. Compl. 5, ECF No. 7). 2

2

Plaintiff also states

The Court notes that Plaintiff’s description of the nature of
his confinement in the SHU is a verbatim recitation of the
allegations made by the plaintiff in Bistrian v. Levi, 696 F.3d
352, 374 (3d Cir. 2012). Nevertheless, this Court will accept
the allegations of Plaintiff’s Amended Complaint as an accurate
description of the conditions of his confinement in the SHU. To
the extent Plaintiff believed that repeating the claims made in
Bistrian would assist him in succeeding on his own claims,
9

that he was diagnosed with PTSD and Dysthmic disorder after
being confined in the SHU (Am. Compl. 3, ECF No. 7), and that he
“experienced nightmares, resulting in poor sleep” (Am. Compl. 8,
ECF No. 7).
Although the conditions which Plaintiff describes are
unpleasant, Plaintiff has presented no evidence suggesting that
he was denied basic human needs. See, e.g., Griffin v. Vaughn,
112 F.3d 703, 709 (3d Cir. 1997).

Instead, Plaintiff confirms

that he receives meals, and that basic supplies — while
difficult to obtain — are available.

Plaintiff’s assertion that

medical care in the SHU is “absent or deficient” is contradicted
by Plaintiff’s assertion that he was “diagnosed at various
times” with mental conditions and that he was prescribed
medication during his time in the SHU, (Am. Compl. 8, ECF No.
7), and by the BOP Psychology Services records Plaintiff
submitted, which confirm that Plaintiff had access to medical
care and report that he was monitored during weekly psychology
rounds while confined in the SHU (Records 6-7, ECF No. 9).

Plaintiff is informed that the facts in Bistrian are
distinguishable from the facts of this case. Significantly, the
plaintiff in Bistrian was a pretrial detainee; whereas Plaintiff
in this case is a convicted and sentenced inmate. See Bistrian,
696 F.3d at 372 (quoting Cobb v. Aytch, 643 F.2d 946, 962 (3d
Cir. 1981) (en banc)) (“[P]retrial detainees have ‘federally
protected liberty interests that are different in kind from
those of sentenced inmates.’”).

10

Likewise, Plaintiff’s contention that he had reduced access to
legal materials and a limited ability to file administrative
grievances in the SHU is belied by his assertion that he
exhausted his administrative remedies (Am. Compl. 9, ECF No. 7),
and by the fact that he filed this civil action (ECF No. 1).
For these reasons, the allegations of the Amended Complaint
regarding the conditions of Plaintiff’s confinement do not
satisfy the objective component of a conditions of confinement
claim under the Eighth Amendment.
Moreover, Plaintiff has failed to plead any facts which
would satisfy the subjective component of a conditions of
confinement claim.

Namely, Plaintiff fails to identify which

prison official(s) acted with deliberate indifference.

With the

exception of Assistant Warden Dynan, the Amended Complaint does
not allege any actions or omissions on the part of the named
defendants.

And Plaintiff’s specific allegations regarding

Assistant Warden Dynan relate only to her refusal to approve
visitation privileges.

Thus, the Amended Complaint fails to

allege that any of the named defendants knew of and disregarded
an excessive risk to Plaintiff’s health or safety.

Accordingly,

any claim Plaintiff means to assert for violations of his Eight
Amendment rights based on the conditions of his confinement is
dismissed for failure to state a claim upon which relief can be
granted. See, e.g., Brown v. United States, No. 11-4421, 2014 WL
11

1407398, at *5 (D.N.J. Apr. 11, 2014) (discussing district
court’s previous sua sponte dismissal of Eighth Amendment
conditions of confinement claim with prejudice after determining
that plaintiff had failed to allege both the objective and
subjective components).
C. Due Process Claim
As explained to Plaintiff in the Court’s October 27, 2015
Opinion (ECF No. 4), any substantive due process claim as a
result of Plaintiff’s placement in SHU was dismissed with
prejudice. See, e.g., Robinson v. Norwood, 535 F. App'x 81, 84
n.3 (3d Cir. 2013) (agreeing with district court’s decision to
deny Robinson's motions to amend the complaint); Johnson v.
Burris, 339 F. App'x 129, 131 (3d Cir. 2009) (affirming district
court’s conclusion that granting leave to amend in Johnson's
case would have been futile because the complaint, as amended or
supplemented, would fail to state a due process claim upon which
relief could be granted pursuant to § 1915(e)(2)(B)).

As such,

Plaintiff may not reassert this claim in his Amended Complaint.
The Court notes, however, that Plaintiff has altered his
argument somewhat to focus on the amount of procedural due
process he was afforded.

Specifically, Plaintiff states that

his rights to procedural due process were violated because he
“was never issued an incident report or charged by any outside
agency.” (Am. Compl. 6, ECF No. 7).
12

As an initial matter,

Plaintiff’s assertion that he “was never issued an incident
report” is misleading at best, and is contradicted by
Plaintiff’s statement earlier in the Amended Complaint that
there was, in fact, “an incident report that was later
dismissed.” (Am. Compl. 3, ECF No. 7). 3
Moreover, this Court reiterates that Plaintiff has not
implicated a liberty interest; therefore, he is not entitled to
due process. See Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293,
132 L.Ed.2d 418 (1995); Robinson v. Norwood, 535 F. App'x 81, 83
(3d Cir. 2013) (“Transfers from lesser to more restrictive units
in a prison generally do not implicate a protected liberty
interest because some incursions on liberty are to be expected
within a prison.”); Johnson v. Burris, 339 F. App'x 129, 131 (3d
Cir. 2009) (quoting Fraise v. Terhune, 283 F.3d 506, 522 (3d
Cir. 2002) (citations omitted)) (“Being classified to the
highest security level in the SHU . . . is not outside what a
prisoner ‘may reasonably expect to encounter as a result of his
or her conviction in accordance with due process of law.’”).
Further, Plaintiff’s reliance on Shoats v. Horn, 213 F.3d
140 (3d Cir. 2000) is misplaced.

As explained to Plaintiff in

this Court’s October 27, 2015 Opinion, the inquiry of whether a

3

The Court also notes that Plaintiff devoted a significant
portion of the original Complaint to describing the incident
report and the disciplinary hearing officer’s determination as a
result of that incident report. See (Compl. 7-8, ECF No. 1).
13

protected liberty interest exists under Sandin is fact-specific;
and courts should “consider the duration of the disciplinary
confinement and the conditions of that confinement in relation
to other prison conditions.” Mitchell v. Horn, 318 F.3d 523, 532
(3d Cir. 2003) (citing Shoats, 213 F.3d at 144).

Thus, in

Shoats, the court held that “eight years in administrative
custody, with no prospect of immediate release in the near
future, is ‘atypical’ in relation to the ordinary incidents of
prison life” such that the plaintiff there had a protected
liberty interest. Id. at 143.
The allegations of the Amended Complaint, taken as true,
establish that Plaintiff was confined in the SHU for 241 days —
from January 30, 2015 to September 28, 2015 — while an
investigation was pending.

The conditions of Plaintiff’s

confinement, discussed above, are not atypical in relation to
the ordinary incidents of prison life.

Also, aside from the

visitation issue discussed in relation to Plaintiff’s equal
protection claim infra, the Amended Complaint does not allege
any facts to suggest that the hardships Plaintiff endured in the
SHU were any greater in relation to the hardships endured by
other prisoners.

To the contrary, in describing the nature of

his confinement in the SHU, Plaintiff describes the conditions
endured by prisoners, in general. See (Am. Compl. 5, ECF No. 7)
(“Inmates . . . receive meals in their cells[.]”) (emphasis
14

added).

Thus, in considering the duration of his disciplinary

confinement, and the actual conditions of that confinement in
relation to the hardships endured by other prisoners, Plaintiff
has not alleged facts sufficient to trigger a liberty interest
under Sandin. See, e.g., Wilson v. Hogsten, 269 F. App'x 193,
195 (3d Cir. 2008) (plaintiff’s complaint that he was kept in
the SHU during the pendency of a ten-month internal
investigation, and for ten weeks afterward, was not a cognizable
constitutional claim); Cf. Pressley v. Blaine, 352 F. App'x 701,
706 (3d Cir. 2009) (remanding to district court for factspecific inquiry into whether a liberty interest was
implicated).
Because no liberty interest is implicated, any due process
claim asserted by Plaintiff, substantive or procedural, is
dismissed with prejudice.
D. Retaliation Claims
“Retaliating against a prisoner for the exercise of his
constitutional rights is unconstitutional.” Bistrian v. Levi,
696 F.3d 352, 2012 WL 4335958 at *19 (3d Cir. 2012).

A prisoner

alleging retaliation must show that: (1) he engaged in
constitutionally protected conduct, (2) he then suffered some
adverse action caused by prison officials; and (3) a causal link
existed between the protected conduct and the adverse action.

15

Obiegbu v. Werlinger, 581 F. App'x 119, 122 (3d Cir. 2014)
(citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)).
The claims for retaliation set forth in Plaintiff’s initial
Complaint were dismissed because Plaintiff failed to allege that
he engaged in any constitutionally protected conduct or that the
adverse action was related to that protected conduct. See
(Opinion 10-11, Oct. 21, 2015, ECF No. 4).
In the Amended Complaint, Plaintiff reasserts one of his
previous claims for retaliation.

Plaintiff clarifies that he

was retaliated against “for protesting the common practices in
the orderly running of the daily operations of the facility[;]”
and that “after [he] started complaining about the living
quarters to the Duty Officer’s [sic] and Warden, [Plaintiff] was
(1) placed in the SHU, (2) received an administrative detention
order[.]” (Am. Compl. 6, ECF No. 7).

However, with respect to

his placement in the SHU, Plaintiff does not clarify which named
Defendant retaliated against him by placing him there.

Although

Plaintiff mentions the Warden as one of the officials to whom
Plaintiff made complaints, Plaintiff does not allege that the
Warden made the decision to transfer him; nor does Plaintiff
allege facts which suggest a causal link between his complaints
about the living quarters and his transfer.

To the contrary,

the record before the Court — specifically, the response to
Plaintiff’s inmate request form (Am. Compl. 19, Ex. B, ECF No.
16

7) and Plaintiff’s own assertion (Am. Compl. 3, ECF No. 7) —
indicates that Plaintiff was transferred to the SHU as the
result of an incident report which had been filed against him. 4
Accordingly, to the extent Plaintiff asserts that prison
officials retaliated against him by placing him in the SHU, he
has again failed to allege facts sufficient to state a claim
upon which relief can be granted, and this claim will be
dismissed.
The Court also construes the Complaint as alleging a second
claim for retaliation.

Specifically, Plaintiff states that

Assistant Warden Dynan (“Dynan”) retaliated against him by

4

The Court further notes that Plaintiff states in the Amended
Complaint, “Instead, defendants argue that Miller has not
plausibly alleged an adverse action, this is where Miller
asserts his diagnosed PTSD and Dysthymic Disorder comes into
play.” (Am. Compl. 7, ECF No. 7). The Amended Complaint has not
yet been screened by the Court and, as such, has not been
formally filed or served upon Defendants. Therefore, it is
unclear how or why Plaintiff believes Defendants have challenged
his retaliation claim on the basis that he has not properly pled
an adverse action. Because of Plaintiff’s previous use of
language from the Bistrian case with regard to the conditions of
his confinement, it is likely that Plaintiff also acquired this
adverse action language from Bistrian. See Bistrian, 696 F.3d at
376 (“Instead, Appellants argue that Bistrian has not plausibly
alleged an ‘adverse action’[.]”). This Court need not address
whether Plaintiff has plausibly alleged an adverse action
because, as set forth above, this Court finds that Plaintiff has
failed state a claim for retaliation because he does not
identify the prison official(s) whose actions or omissions
resulted in the adverse action; nor does he allege facts which
suggest a causal link between his complaints about the living
quarters and the adverse action.

17

denying him a visit with his dying mother.

Plaintiff further

states that, in response to his inquiry regarding a phone call
from Plaintiff’s family, Dynan stated to him, “I don’t care what
happens to your Mother.

Maybe you will think about that the

next time you decide to write us up, and go over my head, to the
Warden.” (Am. Compl. 8, ECF No. 7).

Plaintiff also submits the

affidavits of two inmates who allegedly witnessed Dynan making
these statements. (Affidavits 3-4, ECF No. 9).

This claim for

retaliation will not be dismissed at this time.
E. Equal Protection Claim
Finally, Plaintiff asserts that his right to equal
protection has been violated because a white inmate in the SHU
was permitted “to have visitation privileges on a non-visiting
day” while Plaintiff, a black inmate 5, was denied visitation
privileges altogether. (Am. Compl. 8, ECF No. 7).

Plaintiff

alleges that he and the white inmate were similarly situated,
yet Plaintiff was treated differently. See Williams v. Morton,
343 F.3d 212, 221 (3d Cir. 2003) (citations omitted) (“To
prevail on an equal protection claim, a plaintiff must present

5

Although Plaintiff does not clarify this in his Amended
Complaint, a review of the Bureau of Prison’s website describes
Plaintiff’s race as “black.” See http://www.bop.gov/inmateloc/.
18

evidence that s/he has been treated differently from persons who
are similarly situated.”).
However, nothing in the Amended Complaint — or in the
affidavits from other prisoners submitted in support of the
Amended Complaint, (ECF No. 9) — suggests that race played any
role in the decision to deny Plaintiff visitation privileges.
To the contrary, Plaintiff specifically asserts in his Amended
Complaint that the decision to deny him visitation privileges
was based on retaliation, not on race. (Am. Compl. 8, ECF No. 7)
(“AW Dynan used [Plaintiff’s] mother[’s] death to retaliate
against him.”).

Accordingly, Plaintiff has not adequately pled

a cause of action for a violation of his equal protection
rights, and this claim will be dismissed without prejudice.
IV.

SERVICE OF THE COMPLAINT

Plaintiff has not been granted in forma pauperis status in
this case.

Therefore, he is not automatically entitled to

assistance from the United States Marshal in serving the
summons.

Plaintiff must serve the Complaint upon Defendant

Assistant Warden Dynan in accordance with Rule 4 of the Federal
Rules of Civil Procedure, see FED. R. CIV. P. 4(i) (discussing
requirements for service upon the United States and its
employees); FED. R. CIV. P. 4(l) (discussing proof of service);
FED. R. CIV. P. 4(m) (providing time limit for service).

19

V.

CONCLUSION

For the foregoing reasons, all claims against Defendants in
their official capacities will be dismissed with prejudice.
Hence the following discussion applies to the Defendants in
their individual capacities only.

Plaintiff’s retaliation claim

against Assistant Warden Dynan will not be dismissed at this
time.

The remainder of the claims in the Amended Complaint will

be dismissed pursuant to 28 U.S.C. § 1915A(b)(1), for failure to
state a claim upon which relief may be granted.

Therefore,

Defendants Charles E. Samuels, J. Hollingsworth, SHU Lieutenant
McCool, SIS Lieutenant Bittner, SIS Officer Salazar and SIS
Officer Bartell are dismissed from this suit.
Because Plaintiff cannot state a claim a claim for
violation of a liberty interest as a result of his placement in
the SHU, see, e.g., Robinson, 535 F. App'x at 84 n.3 and
Johnson, 339 F. App'x at 131, Plaintiff’s procedural due process
claim will be dismissed with prejudice. See Grayson, 293 F.3d at
108 (a district court may deny leave to amend under Rule 15(a)
when amendment is futile).
However, because it is conceivable that Plaintiff may be
able to supplement his pleading with facts sufficient to state
an Eighth Amendment conditions of confinement claim, equal
protection claim, or a retaliation claim under Bivens, the Court
will grant Plaintiff leave to file an application to re-open
20

accompanied by a second proposed amended complaint. 6 See Denton,
504 U.S. 25; Grayson, 293 F.3d 103.
An appropriate Order will be entered.

____s/ Noel L. Hillman____
NOEL L. HILLMAN
United States District Judge
Dated: May 19, 2016
At Camden, New Jersey

6

Plaintiff should note that when an amended complaint is filed,
it supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts
the earlier pleading. See West Run Student Housing Associates,
LLC v. Huntington National Bank, 712 F.3d 165, 171 (3d Cir.
2013) (collecting cases). See also 6 CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2008). To avoid
confusion, the safer practice is to submit an amended complaint
that is complete in itself. Id.
21