ALEXANDER v. ORTIZ ET AL

Filing 3

OPINION. Signed by Chief Judge Jerome B. Simandle on 12/2/2015. (dmr)(n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

KENDALL CHARLES ALEXANDER,
SR.,
Plaintiff,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 15-6981 (JBS-AMD)

v.
ROBERT ORTIZ, et al.,

OPINION

Defendants.

APPEARANCES:
Kendall Charles Alexander, Sr., Plaintiff Pro Se
#24498-037
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court is Plaintiff Kendall Charles Alexander,
Sr.’s (“Plaintiff”), submission of a civil rights complaint
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971) (Docket Entry 1), alleging
racial discrimination arising from Plaintiff’s participation in
the UNICOR work program of the Federal Bureau of Prisons at FCI
Fort Dix. At this time, the Court must review the complaint,
pursuant to 28 U.S.C. §§ 1915 and 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 shall proceed in part and shall be dismissed
in part.
I. BACKGROUND
Plaintiff brings this civil rights action against
Defendants Robert Ortiz, the United States, the Federal Bureau
of Prisons (“BOP”), and UNICOR.1 (Docket Entry 1 at 1). The
following factual allegations are taken from the complaint and
are accepted for purposes of this screening only. The Court has
made no findings as to the veracity of Plaintiff’s allegations.
Plaintiff is a convicted and sentenced federal prisoner
currently confined at FCI Fort Dix, New Jersey. Plaintiff
alleges Ortiz, a factory manager employed by UNICOR, unlawfully
discriminated against Plaintiff on account of his race. (Docket
Entry 1 at 4-5). Plaintiff indicates that he began working with
UNICOR in August 2013 as a mechanic. (Docket Entry 1 at 5). In
spite of his experience, Plaintiff alleges Ortiz passed him over
for promotion, denied him the ability to work overtime after he
filed grievances, and “overlooked” Plaintiff’s benefits,
longevity, and pay. (Docket Entry 1 at 5). He further alleges

1

UNICOR is the trade name of Federal Prison Industries and is a
wholly-owned Government corporation.
2

that Caucasian mechanics were promoted before Plaintiff, even
though they were hired after Plaintiff. Plaintiff also states
none of the Caucasian mechanics had to wait as long as Plaintiff
did before receiving a promotion. (Docket Entry 1 at 5).
Plaintiff also alleges UNICOR employed “illegals” at Fort Dix.
(Docket Entry 1 at 4).
Plaintiff asks this Court to reinstate his longevity credit
and award him back pay retroactive to the date he should have
been promoted. He also requests back pay for overtime
opportunities he was unlawfully denied. (Docket Entry 1 at 6).
He also requests the Court order UNICOR to “hire more American
citizens.” (Docket Entry 1 at 7).
II. STANDARD OF REVIEW
A. 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
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defendant who is immune from such relief. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §§ 1915
and 1915A because Plaintiff is a prisoner proceeding in forma
pauperis and is seeking redress from a government official.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
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.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
screening for failure to state a claim,2 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

2

“[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 (3d Cir. 2000)).
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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). 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) (emphasis added).
B. Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics
In Bivens, the Supreme Court created a federal counterpart
to 42 U.S.C. § 1983. See Egervary v. Young, 366 F.3d 238, 246
(3d Cir. 2004) (“Bivens actions are simply the federal
counterpart to § 1983 claims brought against state officials”),
cert. denied, 543 U.S. 1049 (2005). In order to state a claim
under Bivens, a plaintiff must allege: (1) a deprivation of a
right secured by the Constitution and laws of the United States;
and (2) that the deprivation of the right was caused by a person
acting under color of federal law. See Couden v. Duffy, 446 F.3d
483, 491 (3d Cir. 2006); see also Collins v. F.B.I., Civ. No.
10–3470, 2011 WL 1627025, at *6 (D.N.J. Apr. 28, 2011) (“The
Third Circuit has recognized that Bivens actions are simply the
federal counterpart to § 1983 claims brought against state
officials and thus the analysis established under one type of
claim is applicable under the other.”).

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III. ANALYSIS
A. The United States
To the extent Plaintiff seeks relief from the United
States, his claim is barred under the doctrine of sovereign
immunity. The United States may not be sued without its consent.
Tucker v. Sec'y of Health & Human Servs., 588 F. App'x 110, 115
(3d Cir. 2014); Perez–Barron v. United States, 480 F. App'x.
688, 691 (3d Cir. 2012) (citing Chinchello v. Fenton, 805 F.2d
126, 130 n.4 (3d Cir. 1986)). There being no indication that the
United States has consented to being sued, Plaintiff’s claims
against the United States are therefore dismissed.
B. The Federal Bureau of Prisons and UNICOR
The Supreme Court has declined to extend Bivens liability
to federal agencies. FDIC v. Meyer, 510 U.S. 471, 483-85 (1994).
As a federal agency, the BOP is not subject to Bivens actions.
“If a federal prisoner in a BOP facility alleges a
constitutional deprivation, he may bring a Bivens claim against
the offending individual [federal] officer . . . . [He] may not
bring a Bivens claim against the officer's employer, the United
States, or the BOP.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61,
72 (2001) (citing Meyer). The claims against the BOP must be
dismissed.
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UNICOR is likewise not subject to Bivens liability. Bivens
plaintiffs “may not bring a Bivens claim against the officer's
employer[,]” ibid., which in Ortiz’s case is UNICOR. Plaintiff’s
claims against UNICOR must also be dismissed.3
C. Equal Protection
Plaintiff alleges Ortiz unlawfully discriminated against
him on the basis of race. While “inmates have no right to a
particular job assignment while they are incarcerated, prison
officials cannot discriminate against an inmate by making a job
assignment on the basis of race.” Williams v. Fed. Bureau of
Prisons & Parole Comm'n, 85 F. App'x 299, 305 (3d Cir.
2004)(internal citation omitted) (citing Cruz v. Beto, 405 U.S.
319, 321 (1972)). In order to sufficiently plead an Equal
Protection violation of the Fifth Amendment,4 a plaintiff must
allege that: (1) that he is a protected class member and (2)

3

UNICOR is not subject to Title VII of the Civil Rights Act of
1964 as “[i]t is well established that a prisoner is not an
employee . . . because the relationship is not one of
employment, but arises out of the prisoner's status as an
inmate. Similarly, for purposes of Title VII, [Plaintiff’s]
relationship with UNICOR is one of a prisoner, not an employee.”
Wilkerson v. Samuels, 524 F. App'x 776, 779 (3d Cir.
2013)(citing E.E.O.C. Dec. No. 86–7, *3, 40 Fair Empl. Prac.
Cas. (BNA) 1892 (1986)).
4 The Fifth Amendment does not contain an equal protection
clause, but the Supreme Court has construed the Fifth Amendment
as containing an equal protection guarantee and applies the same
principles to such claims as those arising under the Fourteenth
Amendment. Abdul–Akbar v. McKelvie, 239 F.3d 307, 316–17 (3d
Cir. 2001) (citing Adarand Constructors, Inc. v. Pena, 515 U.S.
200, 217 (1995)).
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that he was treated differently from similarly situated persons
outside his protected class. See Tillman v. Lebanon County Corr.
Facility, 221 F.3d 410, 423–24 (3d Cir. 2000).
Although Plaintiff does not specifically state he is a
member of a protected class, the Court infers that Plaintiff is
a member of a racial minority from the allegation that Caucasian
mechanics were promoted ahead of him. He has not sufficiently
alleged, however, that those mechanics were similarly situated
to him.
“Persons are similarly situated under the Equal Protection
Clause when they are alike in all relevant aspects.” Startzell
v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008). Plaintiff’s
complaint indicates that Caucasian mechanics with less seniority
than Plaintiff did not have to wait as long for a promotion.
(Docket Entry 1 at 5). It contains no facts regarding the other
mechanics that would indicate they were similar to Plaintiff in
every way other than their race, e.g., their skill level,
evaluations, and progress in the UNICOR program. In the absence
of such facts, Plaintiff’s Equal Protection claim must be
dismissed at this time. He may, however, file an amended
complaint addressing this deficiency by spelling out his factual
allegations that he was at least as well qualified for promotion
as the white inmates who were promoted.

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D. Retaliation
Plaintiff also alleges Defendant Ortiz excluded him from
working overtime after Plaintiff filed grievances about his
employment. (Docket Entry 1 at 5).
“[R]etaliation for the exercise of constitutionally
protected rights . . . ‘is itself a violation of rights secured
by the Constitution actionable under section 1983.’” Miller v.
Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (quoting White v.
Napoleon, 897 F.2d 103, 111–12 (3d Cir. 1990)). Plaintiff must
allege “(1) he engaged in constitutionally protected activity;
(2) he suffered, at the hands of a [federal] actor, adverse
action sufficient to deter a person of ordinary firmness from
exercising his constitutional rights; and (3) the protected
activity was a substantial or motivating factor in the [federal]
actor's decision to take adverse action.” Fantone v. Latini, 780
F.3d 184, 191 (3d Cir. 2015), as amended (Mar. 24, 2015).
“[T]he filing of grievances and lawsuits against prison
officials constitutes constitutionally protected activity.”
Mearin v. Vidonish, 450 F. App’x 100, 102 (3d Cir. 2011) (per
curiam). Although there is nothing inherently unconstitutional
about Ortiz determining who among the mechanics would be
permitted to work overtime,5 even a lawful act becomes

5

This is, of course, presuming there was no discriminatory
reason for denying Plaintiff the ability to work overtime.
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unconstitutional if done in retaliation for the exercise of the
constitutional right to seek redress. See Allah v. Seiverling,
229 F.3d 220, 224-25 (3d Cir. 2000) (“Government actions, which
standing alone do not violate the Constitution, may nonetheless
be constitutional torts if motivated in substantial part by a
desire to punish an individual for the exercise of a
constitutional right.”) (internal quotation marks omitted).
Construing all inferences in Plaintiff’s favor, Plaintiff
has sufficiently alleged Ortiz prevented Plaintiff from working
overtime in retaliation for filing grievances about his
employment. This claim shall proceed at this time.
E. Leave to Amend
As Plaintiff may be able to allege facts that would address
the deficiencies of his Equal Protection claim as noted by the
Court, Plaintiff may move for leave to file an amended
complaint. Any motion to amend the complaint must be accompanied
by a proposed amended complaint and comply with Federal Rule of
Civil Procedure 15 and Local Civil Rule 7.1.
Plaintiff should note that when an amended complaint is
filed, the original complaint no longer performs any function in
the case and cannot be utilized to cure defects in the amended
complaint, unless the relevant portion is specifically
incorporated in the new complaint. 6 Wright, Miller & Kane,
Federal Practice and Procedure 1476 (2d ed. 1990) (footnotes
10

omitted). An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
explicit. Id. To avoid confusion, the safer course is to file an
amended complaint that is complete in itself. Id. The amended
complaint may not adopt or repeat claims that have been
dismissed with prejudice by the Court, such as the claims
against the United States, the Bureau of Prisons, and UNICOR.
IV.

CONCLUSION
For the reasons stated above, Plaintiffs claims against the

United States, the Bureau of Prisons, and UNICOR are dismissed
with prejudice as these defendants are either immune from suit
or not subject to suit under Bivens. 28 U.S.C. §
1915(e)(2)(B)(ii)-(iii). Plaintiff’s Equal Protection claim is
dismissed without prejudice, and his retaliation claim may
proceed at this time. An appropriate order follows.

December 2, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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