CARTER v. FCI FORT DIX MEDICAL DIRECTOR et al

Filing 10

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/21/2017. (tf, n.m.)

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

CURTIS CARTER,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 16-2441 (JBS-AMD)

v.
FCI FORT DIX MEDICAL DIRECTOR
& WARDEN, dba FORT DIX MEDICAL
DEPARTMENT; FBOP NE REGIONAL
DIRECTOR, dba FBOP REGIONAL
OFFICE,

OPINION

Defendants.

APPEARANCES:
Curtis Carter, Plaintiff Pro Se
#08717068
Elkton – Federal Correctional Institution
Inmate Mail/Parcels
P.O. Box 10
Lisbon, OH 44432
SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court is Plaintiff Curtis Carter’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; motion to quash delay of service,
Docket Entry 8; and motion to appear via telephone conference,
Docket Entry 9. At this time, the Court must review the
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. For the reasons set
forth below, the Court concludes that the complaint will proceed
in part. Plaintiff’s motion to quash delay of service and motion
to appear via telephone conference are dismissed as moot and
denied, respectively.
II. BACKGROUND
Plaintiff brings this civil rights action against the
warden and medical director of FCI Fort Dix, New Jersey, and the
Bureau of Prisons (“BOP”) Northeast Regional Director. 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 truth of Plaintiff’s allegations.
Plaintiff is a convicted and sentenced federal prisoner
previously confined at Fort Dix. At the time he entered the
BOP’s custody, Plaintiff had “a preexisting condition from an
Accident which caused him debilitating pain and suffering until
he received chiropractic care on his own dime from professionals
and his own Physician.” Complaint ¶ 2. He requested continuance
of his chiropractic care upon his arrival at Fort Dix. Id. ¶ 3.
In an affidavit attached to the complaint, he states his
physician, Dr. Dunlop, recommended continuous chiropractic
therapy due to degeneration in Plaintiff’s spine. Affidavit,
2

Complaint at 13. His physician “made a professional
recommendation to have [Plaintiff] seen by a contract
chiropractic practitioner based on his training and knowledge of
[Plaintiff’s] serious medical needs. . . . For his
recommendation, Dr. Dunlop was vehemently admonished and
reprimanded by a Regional official . . . .” Id. Plaintiff
further alleges the medical staff at Fort Dix “gave him a lot of
run-around but never quite got around to actually providing him
the care and treatment that he so desperately needed,” id. ¶ 4,
and that he was “scheduled for procedures which Fort Dix avoided
providing and because of that they relied on the pretense that
those procedures they refused to take care of had to be done
before he could move to the next step in the evaluation.” Id. ¶
5. Plaintiff indicates he submitted grievances to the Northeast
Regional Office but “they simply overlooked it or are and were
too backlogged and bogged down to give the matter the attention
deserved and he went without such aid to date suffering.” Id. ¶
6.
Plaintiff began receiving chiropractic treatments after
being transferred to FCI Elkton, Ohio. Id. ¶ 13. He states that
he was informed by a “medical Staffer” that “basically the
regional authorities strongly discouraged him ever again putting
an inmate in for such therapy with little explanation of what
legitimate penological or medical restriction purpose was
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related to their wanting to refuse such therapy to those who
might need it whether they require it or not.” Id. ¶ 14. He
alleges “[o]n information and belief all along it has been the
unspoken policy of regional administration under and affiliated
with the FBOP NE REGIONAL OFFICE and its DIRECTOR(s) to refuse
proper medical attention even though an inmate will be left to
suffer indefinitely without it.” Id. ¶ 15.
III. 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
defendant who is immune from such relief. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §§ 1915,
1915A and 42 U.S.C. § 1997e because Plaintiff is a prisoner
proceeding in forma pauperis and is seeking redress from
government officials about the conditions of his confinement.
4

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,1 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.” 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, they “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).

1

“[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)).
5

B. Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics
In Bivens, the Supreme Court created a federal counterpart
to the remedy created in 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.”).
IV. ANALYSIS
Plaintiff brings his claims against the Fort Dix Warden,
Fort Dix Medical Director, and the BOP NE Regional Director. He
alleges ethics and “corrections professional laws” violations;
unconstitutional conditions of confinement due to overcrowding;

6

medical malpractice and negligence; denial of adequate medical
care; and Privacy Act violations.2
A. Ethics Violations
Plaintiff appears to be attempting to raise claims of
ethical violations by the medical professionals and corrections
officers at Fort Dix:
Ethics and CORRECTIONS professional laws apply both
state and federal and to have failed to treat CARTER for
the reasons and by the manner described herein and to
further be developed before the Court shows an ETHICS
agreement VIOLATION, implied employment contract breach,
and the CORRECTION OFFICER laws of the state forbid that
the accused who are in the business of CORRECTIONS treat
or allow any to treat CARTER in the manner described
above.
Complaint ¶ 20. Apart from professional negligence claims, there
are no federal or state civil causes of action for violations of
professional ethics.3 See Pryzbowski v. U.S. Healthcare, Inc.,
245 F.3d 266, 282 (3d Cir. 2001) (citing Pierce v. Ortho
Pharmaceutical Corp., 417 A.2d 505, 514 (N.J. 1980) for
proposition that the Hippocratic Oath “does not contain a clear
mandate of public policy” upon which a cause of action may be
based); Baxt v. Liloia, 714 A.2d 271, 277 (N.J. 1998) (holding

2

The claims are dismissed with prejudice to the extent Plaintiff
is seeking damages from defendants in their official capacities
as they are entitled to sovereign immunity. See Hairston v.
Miller, 646 F. App'x 184, 187 (3d Cir. 2016) (citing Treasurer
of N.J. v. U.S. Dep’t of the Treasury, 684 382, 295 (3d Cir.
2012)).
3 It is not clear to the Court what “corrections professional
laws” Plaintiff is referencing in his complaint.
7

Rules of Professional Conduct for attorneys “are not designed to
establish standards for civil liability”). Such a claim would
ordinarily be raised with the relevant licensing authority. See,
e.g., State Board of Medical Examiners, available at
http://www.njconsumeraffairs.gov/bme (last visited Mar. 13,
2017) (“New Jersey's Board of Medical Examiners is responsible
for protecting the public's health and safety by determining
qualifications of applicants for licensure, establishing
standards for practice, and disciplining licensees who do not
adhere to those requirements.”).
Evidence of violations of the relevant ethics rules are
relevant as to whether there was professional negligence,
however. Therefore the freestanding ethics violation claims are
dismissed for failure to state a claim, but the Court shall
consider the allegations in connection with Plaintiff’s
malpractice and negligence claims.
To the extent Plaintiff is attempting to bring an action
based on a breach of defendants’ employment contracts, Complaint
¶ 20, that claim must also be dismissed. “Plaintiff has no
standing to seek enforcement of any duties his prison officials
might owe to [the government], since Plaintiff is not an
expressly designated third party beneficiary of the contracts,
if any, that the [government] might have with the prison
officials.” Brown v. Sadowski, No. 08-4489, 2009 WL 2182604, at
8

*5 (D.N.J. July 20, 2009) (citing Anza v. Ideal Steel Supply
Corp., 547 U.S. 451 (2006)); accord Maqbool v. University Hosp.
of Medicine & Dentistry of New Jersey, 2012 WL 2374689, at *4
(D.N.J. June 13, 2012). The breach of contract claims are
dismissed with prejudice.
B. Conditions of Confinement – Overcrowding
Plaintiff also asserts overcrowding in the BOP “coupled
with BOP Fiscal goals and monetary/budget concerns, have
resulted in an inability of the BOP and its directors to care
for the Aging and injured populace of the BOP and under their
custody and care.” Complaint ¶ 21.
“The Eighth Amendment requires prison officials to provide
‘humane conditions of confinement.’” Smith v. Bolava, 632 F.
App'x 683, 686–87 (3d Cir. 2015) (quoting Betts v. New Castle
Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010)).
“[D]eficiencies and inadequacies in prison conditions do not
necessarily violate the Eighth Amendment. The amendment is
violated only where an inmate is deprived of ‘the minimal
civilized measure of life's necessities.’” Tillery v. Owens, 907
F.2d 418, 426 (3d Cir. 1990) (quoting Rhodes v. Chapman, 452
U.S. 337, 347 (1981)). In the case of overcrowding claims, the
Court must assess the totality of the circumstances to determine
whether there is an Eighth Amendment violation. Id. at 426-27
(citing Union County Jail Inmates v. Di Buono, 713 F.2d 984 (3d
9

Cir. 1983)) “Relevant considerations include the length of
confinement, the amount of time prisoners must spend in their
cells each day, sanitation, lighting, bedding, ventilation,
noise, education and rehabilitation programs, opportunities for
activities outside the cells, and the repair and functioning of
basic physical facilities such as plumbing, ventilation, and
showers.” Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996).
Aside from his claims of being denied adequate medical
care, Plaintiff has not provided the Court with any other facts
supporting his allegation that Fort Dix is overcrowded.
Allegations that “are no more than conclusions, are not entitled
to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). Plaintiff has not set forth any information, such as
the number of inmates in the facility or his cell, for the Court
to consider in its assessment of the totality of the
circumstances. Iqbal’s “‘plausibility’ standard does not require
probability, but it does demand more than a sheer possibility
that the defendant acted unlawfully.” Argueta v. U.S.
Immigration & Customs Enf't, 643 F.3d 60, 72 (3d Cir. 2011)
(citing Iqbal, 556 U.S. at 678). More information is needed
regarding Plaintiff’s conditions of confinement in order for
there to be a plausible claim for overcrowding.
As Plaintiff may be able to provide facts supporting this
claim, this claim is dismissed without prejudice. Plaintiff may
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move to amend his complaint to address the deficiencies noted
the by Court. Fed. R. Civ. P. 15.
C. Medical Malpractice and Negligence
The complaint also seeks to bring medical malpractice and
negligence claims against defendants. Complaint § III. These
claims may only be brought against the United States under the
Federal Tort Claims Act (“FTCA”). 28 U.S.C. §§ 1346(b), 2671–
2680. See 28 U.S.C. § 2679(b)(1); Osborn v. Haley, 549 U.S. 225,
229 (2007) (“The Federal Employees Liability Reform and Tort
Compensation Act of 1988, commonly known as the Westfall Act,
accords federal employees absolute immunity from common-law tort
claims arising out of acts they undertake in the course of their
official duties.”); Lomando v. United States, 667 F.3d 363, 378
(3d Cir. 2011) (citing H.R. Rep. No. 100–700, at 6, 1988
U.S.C.C.A.N. 5945 at 5950). The Court therefore construes the
medical malpractice and negligence claims as being brought
against the United States.
Before filing a suit in federal court, a plaintiff suing
under the FTCA must present the offending agency, in this case
the BOP, with notice of the claim, including a “sum certain”
demand for monetary damages. White-Squire v. U.S. Postal Serv.,
592 F.3d 453, 457 (3d Cir. 2010). “Because the requirements of
presentation and a demand for a sum certain are among the terms
defining the United States's consent to be sued, they are
11

jurisdictional.” Id. (citing United States v. Sherwood, 312 U.S.
584, 587 (1941)). These requirements cannot be waived. Id.
(citing Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir.
1971)). Plaintiff includes a document entitled “Notice of Claim
of Harm and Injury” that was apparently sent to the BOP Regional
Office. Complaint at 11. Giving Plaintiff the benefit of all
reasonable inferences, the Court concludes for screening
purposes only that he has met this filing requirement. The
Court, however, lacks jurisdiction over Plaintiff’s FTCA claims.
“The FTCA bars claimants from bringing suit in federal
court until they have exhausted their administrative remedies.”
McNeil v. United States, 508 U.S. 106, 113 (1993); see also
Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015). Exhaustion
occurs when either the agency denies the claim, in which case
plaintiffs must file suit within six months, or six months have
passed without a written denial of the claim. 28 U.S.C. §§
2401(b), 2675(a). The exhaustion requirement is mandatory,
jurisdictional, and applicable to all FTCA plaintiffs regardless
of their pro se or incarcerated status. Shelton, 775 F.3d at
569; Wadhwa v. Nicholson, 367 F. App'x 322, 325 n.5 (3d Cir.
2010) (“McNeil clarified that administrative exhaustion must be
complete before instituting suit, and that this procedural rule
is a requirement to which all litigants must adhere.” (emphasis
in original)).
12

Here, Plaintiff’s notice of claim form is dated January 11,
2016. Complaint at 11. The complaint was received in the mail
room of the United States District Court for the District of
Columbia on February 23, 2016 and filed on April 1, 2016. Id. at
1.4 Plaintiff waited just over one month after submitting his
claim before submitting his complaint. It is clear from the face
of the complaint that he failed to follow the jurisdictional
requirements of the FTCA. See McNeil, 508 U.S. at 112
(exhaustion that occurs after a complaint is filed does not
satisfy requirements of FTCA); Zierke v. United States, No. 161734, 2017 WL 541407, at *2 (3d Cir. Feb. 10, 2017) (citing
McNeil); Hurt v. Lappin, 729 F. Supp. 2d 186, 190 (D.D.C. 2010)
(“Even though the six-month period has now expired, the relevant
analysis is whether [plaintiff] had exhausted his administrative
remedy at the time he filed his complaint.”). The Court must
therefore dismiss the medical malpractice and negligence claims
for lack of jurisdiction.
D. Denial of Medical Care
Plaintiff further alleges defendants violated his
constitutional right to adequate medical care by denying him

4

The complaint was transferred to this district on April 29,
2016, received in the Clerk’s Office on May 2, 2016, and
officially filed on June 23, 2016. Even using the latest
possible date, June 23, 2016, Plaintiff was still several weeks
away from the end of the six-month waiting period at the time he
initiated this action.
13

chiropractic care. The Eighth Amendment’s proscription against
cruel and unusual punishment requires that prison officials
provide inmates with adequate medical care. Estelle v. Gamble,
429 U.S. 97, 103–04 (1976). In order to set forth a cognizable
claim for a violation of his right to adequate medical care, an
inmate must allege: (1) a serious medical need; and (2) behavior
on the part of prison officials that constitutes deliberate
indifference to that need. Id. at 106.
A medical need is serious where it “has been diagnosed by a
physician as requiring treatment or is . . . so obvious that a
lay person would easily recognize the necessity for a doctor's
attention.” Monmouth County Correctional Institution Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (citations omitted).
Plaintiff indicates he was diagnosed in 2005 with spine
degeneration and with “bridging ventral syndesmophytes” and “two
small nodular structures overlying the right mid to lower
abdomen” in 2010. Affidavit. As a result of these conditions,
Plaintiff states his primary physician recommended chiropractic
care and physical therapy. Id. The Court therefore finds
Plaintiff has sufficiently alleged a serious medical need.
The second element of the Estelle test requires an inmate
show that prison officials acted with deliberate indifference to
his serious medical need. “The hallmark of an Eighth Amendment
violation arises when such medical treatment, or the withholding
14

of medical treatment, is accompanied by knowing indifference to
the pain or risk of serious injury this will cause, such as by
‘persistent conduct in the face of resultant pain and risk of
permanent injury.’” Andrews v. Camden Cnty., 95 F. Supp. 2d 217,
228 (D.N.J. 2000) (quoting White v. Napoleon, 897 F.2d 103, 109
(3d Cir. 1990)). Deliberate indifference may be found where the
prison official (1) knows of a prisoner's need for medical
treatment but intentionally refuses to provide it; (2)
intentionally delays necessary medical treatment based on a nonmedical reason; or (3) deliberately prevents a prisoner from
receiving needed medical treatment. See Pierce v. Pitkins, 520
F. App'x 64, 66 (3d Cir. 2013) (citing Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir. 1999)).
Construing the complaint liberally and giving Plaintiff the
benefit of all reasonable inferences, he has sufficiently
alleged an Eighth Amendment claim against the BOP Northeast
Regional Director and Fort Dix Medical Director. Specifically,
he alleges that the Regional Director instituted a policy of
denying needed medical care for non-medical reasons, i.e., the
financial burden of providing care, and that he, or someone at
his direction and in line with the policy, interfered with
Plaintiff’s medical treatment by verbally reprimanding
Plaintiff’s doctor for requesting chiropractic treatment and
forbidding any future treatment. Complaint ¶¶ 14-16, 31; see
15

also Affidavit in Support. As a result of this policy, the Fort
Dix Medical Director denied Plaintiff treatment for his serious
medical need and instead “persist[ed] in a particular course of
treatment ‘in the face of resultant pain and risk of permanent
injury.’” Rouse, 182 F.3d at 197 (quoting White, 897 F.2d at
109–11). The complaint shall be permitted to proceed against
these defendants.
Plaintiff has not sufficiently pled an Eighth Amendment
violation by the Fort Dix Warden, however. “Government officials
may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior [and] a
plaintiff must plead that each Government-official defendant,
through the official's own actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see
also Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012). To
state a claim for supervisory liability for denial of medical
care, a plaintiff must allege facts indicating 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
unreasonable risk that a constitutional injury will occur, and
that such an injury does occur.” Barkes v. First Corr. Med.
Inc., 766 F.3d 307, 320 (3d Cir. 2014) (emphasis in original),
rev'd on other grounds sub nom Taylor v. Barkes, 135 S. Ct. 2042
16

(2015). Plaintiff does not mention the warden in the factual
portion of his complaint at all, and his allegations regarding
the creation of the unconstitutional “environment” are directed
at the Regional Director.
Plaintiff has also failed to state a claim against the
warden to the extent the complaint could be read as basing
liability on the warden’s failure respond to Plaintiff’s
grievances. Complaint ¶ 6. See Davis v. Samuels, 608 F. App'x
46, 48-49 (3d Cir. 2015) (holding sending a grievance to the
office of the Director of the Federal Bureau of Prisons does not
establish personal liability); Rode v. Dellarciprete, 845 F.2d
1195, 1207-08 (3d Cir. 1988). As Plaintiff may be able to allege
facts supporting the warden’s liability, this claim is dismissed
without prejudice.5

5

In the event Plaintiff wishes to pursue those claims that have
been dismissed without prejudice, he may move to amend his
complaint in accordance with Federal Rule of Civil Procedure 15.
Any motion to amend must be accompanied by a proposed amended
complaint. 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
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.
17

E. Privacy Act
Plaintiff also appears to raise a claim under the Privacy
Act, 5 U.S.C. § 552a, for inaccurate and/or falsified medical
records. Complaint ¶ 12. He alleges his records are being
“rigged and adverse decisions have been made thereon for reasons
other than those articulated in the records . . . .” Id. ¶ 37.
“Such claims are exclusively ‘within the remedial scheme of the
Privacy Act [5 U.S.C. § 552a],’ which authorizes a cause of
action to be brought against federal agencies only.” Lynn v.
Lappin, 593 F. Supp. 2d 104, 106 (D.D.C. 2009) (alteration in
original) (quoting Chung v. U.S. Dep't of Justice, 333 F.3d 273,
274 (D.C. Cir. 2003)). Even if the Court were to construe the
claim as being brought against the BOP, it would still have to
dismiss it.
“The Privacy Act ‘governs the government's collection and
dissemination of information and maintenance of its records
[and] generally allows individuals to gain access to government
records on them and to request correction of inaccurate
records.’” Kates v. King, 487 F. App'x 704, 706 (3d Cir. 2012)
(quoting Perry v. Bureau of Prisons, 371 F.3d 1304, 1304–05
(11th Cir. 2004)) (alteration in original). An individual may
bring a lawsuit under the Privacy Act “when an agency
intentionally or willfully fails to comply with the requirements
in such a way as to have an adverse effect on an individual.”
18

Lynn, 593 F. Supp. 2d at 106–07 (citing 5 U.S.C. § 552a
(g)(1)(C)(D), (g)(4)). However, the BOP’s central record system,
including the Inmate Physical and Mental Health Record System,
is entirely exempt from the access and amendment requirements
and the civil remedies provision of the Privacy Act. 28 C.F.R. §
16.97(a)(5); see also Brown v. Bureau of Prisons, 498 F. Supp.
2d 298, 302 (D.D.C. 2007) (“Plaintiff effectively is barred from
obtaining any remedy, including damages, for BOP's alleged
failure to maintain records pertaining to him with the requisite
level of accuracy.”). This claim is therefore dismissed with
prejudice.
F. Preliminary Injunction
Plaintiff asks this Court to issue an preliminary
injunction requiring the BOP to provide him chiropractic
services. “Plaintiffs requesting prospective injunctive relief
must allege a real and immediate threat of future injury.” Owens
v. Armstrong, 171 F. Supp. 3d 316, 334 (D.N.J. 2016) (internal
citation and quotation marks omitted). “Allegations of exposure
to illegal conduct in the past alone, without a showing of
continuing adverse effects, do not demonstrate a case or
controversy entitling a plaintiff to prospective injunctive
relief.” Doe v. Div. of Youth & Family Servs., 148 F. Supp. 2d
462, 479 (D.N.J. 2001) (internal citations omitted). A plaintiff
must be able to show that a real and imminent harm will occur; a
19

mere possibility of future harm will not suffice. ZF Meritor,
LLC v. Eaton Corp., 696 F.3d 254, 300–01 (3d Cir. 2012), cert.
denied, 133 S. Ct. 2025 (2013).
Plaintiff states in his complaint that “FCI Elkton Medical
Department recently put CARTER in for therapy with a Local or
subcontractor Chiropractor for therapy akin to what he received
when he was free and Recommended that that is what was needed.”
Complaint ¶ 13. He has therefore not sufficiently pled that he
will be subject to future injury or suffer irreparable harm if
the injunction is denied. The request for injunctive relief is
dismissed without prejudice.
G. Motion to Quash Delay of Service and for Telephonic
Appearance
Plaintiff filed a motion stating this Court incorrectly
cited to 28 U.S.C. § 1915 in its order granting his in forma
pauperis application. He argues the complaint should not be
screened under this statute as he is “suing the accused actors
and their insurer who are bound to pay. In essence it is an
action for damages specifically against the insured and risk
management carriers claims manager ultimately.” Motion to Quash
Delay of Service. “[T]he only way that the accused could be
deemed responsible ultimately for their own liability is if they
have acted deficiently under the contract with their insurer and

20

employers such that they did not timely report the claims as
required by their tacit or express agreements to do so.” Id.
The complaint alleges Plaintiff experienced medical
malpractice, negligence, Privacy Act violations, and
unconstitutional conditions of confinement at the hands of
federal employees. These actions must be brought against either
the United States under the FTCA or against the individual
federal employees pursuant to Bivens. The Court is required to
screen these claims under §§ 1915, 1915A, and 42 U.S.C. § 1997e.
As the Court is permitting the complaint to proceed in part and
the Marshals will serve the complaint upon Plaintiff’s
completion and return of the necessary forms, the motion to
quash delay of service is dismissed as moot. As the motion was
decided solely on the papers, Fed. R. Civ. P. 78, the motion to
appear via telephone conference is denied.
V.

CONCLUSION
For the reasons stated above, Plaintiff’s Eighth Amendment

medical care claims against the Fort Dix Medical Director and
Northeast Regional Director shall proceed at this time. The rest
of the claims are dismissed, and the motions are denied or
dismissed as moot.

An appropriate order follows.

March 21, 2017
Date

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

21