STILE v. FEDERAL BUREAU OF PRISONS et al

Filing 71

OPINION. Signed by Judge Renee Marie Bumb on 1/22/2019. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

JAMES T. STILE,
Plaintiff
v.

Civ. No. 16-3832 (RMB)
OPINION

UNITED STATES OF AMERICA, et
al.,
Defendants
Appearances:
James M. Stile
FCC Allenwood Low Security
P.O. Box 1000
White Deer, PA 17887
Plaintiff, pro se
Jessica R. O’Neill
Assistant United States Attorney
Office of the U.S. Attorney
District of New Jersey
401 Market Street, 4th Floor
P.O. Box 2098
Camden, New Jersey 08101
On behalf of Defendants
BUMB, District Judge
This matter comes before the Court upon the motion for
judgment on the pleadings by the Defendants, Officer Colina,
Officer A. Burns and the United States of America (collectively
the “Defendants”) (ECF No. 65) (Defendants’ Brief, ECF No. 65-1);
(Plaintiff’s motion for temporary restraining order, ECF No. 68);

and Plaintiff’s Brief in Supp. of Pl’s Response to Defs’ Mot. for
Judgment on the Pleadings (“Plaintiff’s Brief,”) ECF No. 69.) The
Court will decide the motions on the briefs, without an oral
hearing, pursuant to Federal Rule of Civil Procedure 78(b).
I. PROCEDURAL HISTORY
Plaintiff filed a complaint on June 26, 2016. (Compl., ECF
No. 1). This Court screened the complaint pursuant to 28 U.S.C. §
1915(e)(2)(b) and § 1915A and determined that Plaintiff failed to
state a claim upon which relief could be granted but permitted
Plaintiff to file an Amended Complaint. (Memorandum and Order, ECF
No. 2.) Plaintiff filed an Amended Complaint on September 8, 2016
(Am. Compl., ECF No. 5), which this Court also screened pursuant
to 28 U.S.C. § 1915(e)(2)(b) and § 1915A and dismissed Plaintiff’s
Title VII claims under 42 U.S.C. § 2000e-3, the Americans with
Disability Act under 42 U.S.C. § 12101, discrimination claims under
42 U.S.C. § 1981, First Amendment access to the courts, First
Amendment retaliation based on a grievance filed in Fall 2015, and
claims based on BOP Program Statement 1315.07(1). (Opinion, ECF
No. 8; Order, ECF No. 9.) The Court dismissed all claims of
supervisory liability, resulting in the dismissal of Defendants
Malloy, Robinson, Mason, Hazelwood, and Hollingsworth. (Id.)
At that point, the Court permitted the following claims to
proceed:

Plaintiff’s

claim

that

Defendant

Colina

retaliated

against him as a result of a grievance Plaintiff filed on December
2

2,

2015;

Plaintiff’s

claim

that

Defendants

Colina

and

Burns

violated his right to equal protection; Plaintiff’s claim that
Defendants Colina, Wilkes, Kwartin, and Rehwinkle demonstrated
deliberate indifference to his medical needs; and Plaintiff’s
claim under the Federal Tort Claims Act (“FTCA”) against the United
States. (Opinion, ECF. No. 8 at 29-30.)
Defendants then sought partial summary judgment on certain of
the remaining claims. In an Opinion and Order dated March 26, 2018,
the Court granted summary judgment to Defendants on Plaintiff’s
remaining

retaliation

claim

and

Eighth

Amendment

claim

for

deliberate indifference to his medical needs. (Opinion, ECF No.
60; Order, ECF No. 61). As a result, the only claims remaining are
Plaintiff’s

claim

that

Defendants

Colina

and

Burns

violated

Plaintiff’s Fifth Amendment right to equal protection and his FTCA
claim against the United States.
Defendants now move for judgment on the pleadings.
II.

DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
A.

Rule 12(c) Standard of Review

“A motion for judgment on the pleadings based on the defense
that the plaintiff has failed to state a claim is analyzed under
the same standards that apply to a Rule 12(b)(6) motion.” Zimmerman
v. Corbett, 873 F.3d 414, 417 (3d Cir. 2017). To succeed on a
motion for judgment on the pleadings, a movant must show “there
are no material issues of facts, and he is entitled to judgment as
3

a matter of law.” Zimmerman, 873 F.3d at 417 (quoting Sikirica v.
Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir. 2005) (citing Soc'y
Hill Civic Ass'n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)).
When deciding a motion for judgment on the pleadings, a court must
accept the non-moving party’s factual allegations as true and draw
all reasonable inferences in the nonmoving party’s favor. Id. at
418.
B.

Whether a Bivens Remedy is Available
1.

Standard of Law

While Defendants’ motion for partial summary judgment was
pending, the Supreme Court rendered its opinion in Ziglar v.
Abbasi, 137 S. Ct. 1843 (2017).1 In Abbasi, the Court noted Congress
passed a statute in 1871, later codified at 42 U.S.C. § 1983,
entitling a person to money damages if a state official violated
his or her constitutional rights. Id. at 1854. Congress, however,
has

never

passed

an

analogous

statute

for

violations

of

constitutional rights by federal officials. Id.

1

The Supreme Court decided Ziglar v. Abbasi on June 19, 2017,
requiring a special factors analysis for Bivens claims if raised
in a new context. 137 S.Ct. 1843. Abbasi was not in effect when
this Court screened the Amended Complaint on October 20, 2016
(Opinion, ECF No. 8) or when Defendants filed their motion for
partial summary judgment on February 10, 2017 (Defs’ Mot. for
Partial S.J., ECF No. 27). Therefore, Defendants properly brought
their Abbasi defense in a motion for judgment on the pleadings
filed on June 8, 2018.
4

The Court described its concern with the separation of powers
between Congress and the courts.
When a party seeks to assert an implied cause
of action under the Constitution itself, just
as when a party seeks to assert an implied
cause of action under a federal statute,
separation-of-powers principles are or should
be central to the analysis. The question is
“who should decide” whether to provide for a
damages remedy, Congress or the courts?”
Abbasi, 137 S.Ct. at 1857 (quoting Bush v. Lucas, 462 U.S. 367,
380 (1983)).
The Court reviewed the three cases where it had previously
implied a remedy for constitutional violations by federal actors.
In 1971, the Supreme Court decided Bivens v. Six Unknown Fed.
Narcotics

Agents,

403

U.S.

388

(1971),

holding

that,

absent

statutory authorization, the Court would enforce a damages remedy
to compensate persons injured by Fourth Amendment unreasonable
searches and seizures by federal officers. Id. at 1854.
The Court recognized an implied Bivens cause of action in two
later cases involving constitutional violations. Id. First, in
Davis v. Passman, 442 U.S. 228 (1979) an administrative assistant
sued a Congressman under the Fifth Amendment Due Process Clause
for gender discrimination in employment. Id. Second, in Carlson v.
Green, 446 U.S. 14 (1980), a prisoner’s estate sued federal prison
employees under the Eighth Amendment Cruel and Unusual Punishments

5

Clause for failure to provide adequate medical treatment. Id. at
1855.
In Abbasi, the Court stated that “expanding the Bivens remedy
is now a ‘disfavored’ judicial activity.” Id. at 1857 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). In most instances,
the Court's precedents now instruct that the Legislature is in the
better position to consider if “‘the public interest would be
served’”

by

imposing

a

“‘new

substantive

legal

liability.’”

Abbasi, 137 S.Ct. at 1857 (quoting Schweiker v. Chilicky, 487 U.S.
412, 426–427 (1988) (quoting Bush, 462 U.S. at 390)). In Vanderklok
v. United States, the Third Circuit Court of Appeals stated that
its past pronouncements on whether an implied Bivens remedy was
available is no longer controlling without performing the analysis
required under Abbasi. 868 F.3d 189, 199 (3d Cir. 2017).
“[A]

Bivens

“‘special

remedy

factors

affirmative

action

will

counselling
by

not

be

available

hesitation

Congress.’”

Abbasi,

in
137

if

the

there

are

absence

S.Ct.

at

of

1857

(quoting Carlson, 446 U.S. at 18 (quoting Bivens, 403 U.S. at 396).
Courts should consider whether “the Judiciary is well suited,
absent congressional action or instruction, to consider and weigh
the costs and benefits of allowing a damages action to proceed”
before recognizing an implied Bivens remedy in a new context. Id.
at 1857-58.

6

“[T]he decision to recognize a damages remedy requires an
assessment of its impact on governmental operations systemwide.”
Id. at 1858. “[I]f there are sound reasons to think Congress might
doubt the . . . necessity of a damages remedy . . . the courts
must refrain from creating the remedy.” Id. Further,
if there is an alternative remedial structure
present in a certain case, that alone may
limit the power of the Judiciary to infer a
new Bivens cause of action. For if Congress
has created ‘any alternative, existing process
for protecting the [injured party's] interest’
that itself may ‘amoun[t] to a convincing
reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in
damages.
Id. (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007); see also
Bush v. Lucas, 462 U.S. 367, 385–388 (1983)(recognizing that civilservice regulations provided alternative means for relief); Corr.
Services Corp. v. Malesko, 534 U.S. 61, 73–74 (2001) (recognizing
that state tort law provided alternative means for relief); Minneci
v. Pollard, 565 U.S. 118, 127–130 (2012) (same)).
First, courts must determine whether a case presents a new
Bivens context. Id. at 1859. The context is new if the case is
different in any meaningful way from previous Bivens cases decided
by the Supreme Court. Id. Some examples of how cases may differ in
a meaningful way include:
the rank of the officers involved; the
constitutional right at issue; the generality
or specificity of the official action; the
extent of judicial guidance as to how an
7

officer should respond to the problem or
emergency to be confronted; the statutory or
other legal mandate under which the officer
was
operating;
the
risk
of
disruptive
intrusion
by
the
Judiciary
into
the
functioning of other branches; or the presence
of potential special factors that previous
Bivens cases did not consider.

Id. at 1860. The “new-context” inquiry is easily satisfied, even
if only small but meaningful differences exist. Id. at 1865.
If a court finds that a case presents a new Bivens context,
the second step is to conduct the special factors analysis to
determine whether Congress or the courts should decide whether a
damages

action

should

be

allowed.

Id.

Special

factors

are

considered in the aggregate. See, e.g., id. at 1861-62. One factor
counseling hesitation to imply a Bivens remedy is when alternative
methods of relief are available. Abbasi, 137 S.Ct. at 1863. A court
should

also

consider

other

reasons

Congress

might

doubt

the

necessity of a damages remedy. Id. at 1865.
2.

The Parties’ Arguments

Plaintiff’s Fifth Amendment equal protection claim, under a
“class of one” theory, is based on his allegation that he was
docked time from work while he went to the “pill line” for
medications,

while

other

inmates

who

were

also

receiving

medications were not docked as much time. (Am. Compl., ECF No. 5
at 17.) Defendants argue that this discrimination claim arises in

8

the

context

of

prison

employment,

a

new

Bivens

context.

(Defendants’ Brief, ECF No. 65-1 at 10-14.)
Defendants acknowledge that one of the three Supreme Court
cases creating a Bivens remedy for a constitutional violation by
a federal actor, Davis v. Passman, involved a gender discrimination
claim under the Fifth Amendment, whereas Plaintiff here presents
a class of one discrimination claim under the Fifth Amendment (Id.
at 11-12 citing Davis, 442 U.S. at 231.) The defendant in Davis
was a former Congressman. (Id.) The plaintiff was a female deputy
administrative assistant who was fired because the Congressman
wanted a male in that position. (Defs’ Brief, ECF No. 65-1 at 12.)
The Court created a Bivens remedy in part because the plaintiff
did not have a Title VII remedy, which was applicable only to
employees in the competitive service. (Id., citing Davis, 442 U.S.
at

231.)

Further,

because

the

defendant

was

no

longer

a

Congressman, equitable relief in the form of reinstatement was not
available. (Id., citing Davis, 442 U.S. at 245.) Thus, in the
Court’s view at that time, a damages remedy was appropriate. (Id.)
Plaintiff’s
within

a

prison,

Fifth
a

Amendment

highly

claim,

regulated

however,

environment

arises
with

from

little

similarity to employment for a Congressman. (Defendants’ Brief,
ECF No. 65-1 at 12.) Unlike the plaintiff in Davis, inmates like
Plaintiff who work in federal correctional institutions do not
have

an

employer/employee

relationship.
9

(Id.)

For

example,

“prisoners producing goods and services used by the prison should
not be considered employees under the [Fair Labor Standards Act].”
(Id. at 12-13, quoting Tourscher v. McCullough, 184 F.3d 236, 243
(3d Cir. 1999); see also, e.g., Wilkerson v. Samuels, 524 F. App’x
776, 779 (3d Cir. 2013) (per curiam) (“It is well established that
a prisoner is not an employee under the [FLSA], 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, [an inmate’s] relationship with UNICOR is one of a
prisoner, not an employee.” (Id. at 13, quoting Wilkerson, 524 F.
App’x at 779; see also Danneskjold v. Hausrath, 82 F.3d 37, 42 (2d
Cir. 1996) (“the relationship is not one of employment”). Federal
inmates

receive

compensation

solely

by

legislative

grace

and

primarily for their own benefit and rehabilitation. (Defendants’
Brief, ECF No, 65-1 at 13, citing Amos v. United States, 13 S.Ct.
442, 446 (1987)).
Defendants note that at least two courts in this district
have determined that discrimination in prison employment is a “new”
Bivens context. (Defs’ Brief, ECF No. 65-1 at 13-14, citing
Alexander v. Ortiz, No. 15-6981, 2018 WL 1399302 (D.N.J. Mar. 20,
2018) (Simandle, J.) (holding that claim of First Case Amendment
retaliation in prison employment is “new” context); Turner v. Doe,
No. 15-5942, 2018 WL 2278096 (D.N.J. May 18, 2018) (Kugler, J.)

10

(holding that Fifth Amendment claim alleging race discrimination
in prison employment is “new” context)).
Defendants set forth several special factors that counsel
against expanding the Bivens remedy in this case: (1) the Prison
Litigation Reform Act (“PLRA”) is a comprehensive legislative
scheme that reflects Congress’ effort to reduce prison litigation;
(2) inmates are not in an employment relationship with their prison
employer, and the exclusion of prisoners from the legal protections
of Title VII, the ADEA, and the FLSA reflects Congress’ decision
not to extend traditional employment remedies to inmates; and (3)
allowing inmates to raise Bivens causes of actions premised on the
Equal Protection Clause would imposes costs on the Government.
(Defendants’ Brief, ECF No. 65-1 at 14-17.)
In

opposition

to

Defendants’

motion

for

judgment

on

pleadings, Plaintiff asserts his Fifth Amendment claim “can only
be equated to the underlying claims of Davis v. Passman . . . .”
(Plaintiff’s Brief, ECF No. 69 at 2.) Plaintiff asserts he met the
three

elements

to

allege

a

“class

of

one”

equal

protection

violation by alleging Defendants Colina and Burns treated him
differently

than

similarly

situated

persons,

they

did

so

intentionally, and there was no rational basis for the difference.
(Plaintiff’s Brief, ECF No. 69 at 3.) Further, Plaintiff asserts
that Congress’ decision not to provide victims of constitutional
violations by federal actors a damages remedy is not a good reason
11

not

to

extend

Bivens

remedies

to

new

contexts.

(Id.

at

5.)

Plaintiff contends that neither prospective injunctive relief nor
a writ of habeas corpus can provide him with redress for harm
already done. (Id. at 4.)
Plaintiff maintains that he did not make a claim based on
prison employment nor does he claim to be a government employee
like the plaintiff in Davis. (Id. at 5.) He asserts that the PLRA’s
intent to weed out frivolous lawsuits is not applicable to all
lawsuits. (Id.) He argues that the pertinent similarities between
his case and the Davis case are that the plaintiffs are both
Americans who are privileged with the protections of the United
States

Constitution,

including

equal

protection

claims.

(Plaintiff’s Brief, ECF No. 69 at 5-6.) In sum, Plaintiff contends
his case does not arise in a new Bivens context, it arises in the
same context as Davis; therefore, the court need not conduct a
special factors analysis to imply a Bivens remedy.
3.

Analysis
a.

New Bivens context

This Court must first determine whether Plaintiff’s Fifth
Amendment class of one equal protection claim presents a new Bivens
context from that in Davis. For the reasons discussed below, the
new context inquiry is easily met here.
Plaintiff alleges that he was not treated equally to other
working inmates because no other inmate’s pay was docked to the
12

same extent as his for time spent in the pill line to take
medications. This case undoubtedly arises in the context of a
prison

work

assignment.

Prison

work

assignments

differ

from

traditional employment, like that in Davis, because prisoners do
not have a constitutional right to compensation for work performed
in prison. Johnson v. Townsend, 314 F. App’x 436, 440 (3d Cir.
2008) (citing Ali v. Johnson, 259 F.3d 317, 317–318 (5th Cir.
2001); Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999),
Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1167
(5th Cir. 1990)). Prisoners are not employees under the Fair Labor
Standards Act or Title VII because the primary relationship between
a prison and a prisoner is incarceration. Wilkerson v. Samuels,
524 F. App’x 776, 779 (3d Cir. 2013) (citing Tourscher, 184 F.3d
at 243; Williams v. Meese, 926 F.2d 994, 007 (10th Cir. 1991)).
Plaintiff

asserts

his

constitutional

right

to

equal

protection under the law is no different from the non-prisoner
plaintiff’s

right

in

Davis.

While

prisoners

maintain

constitutional rights, those rights may be restricted or limited.
Bell v. Wolfish, 441 U.S. 520, 545 (1979). “‘Lawful incarceration
brings

about

privileges

the
and

considerations

necessary
rights,

underlying

withdrawal
a

our

or

retraction
penal

limitation

of

many

justified

by

the

system.’”

Id.

(quoting Price v. Johnston, 334 U.S. 266, 285 (1948)).

13

at

545–46

In sum, prisoners who have work assignments have limited
protections compared to those in traditional employment. Thus,
equal protection claims in prison employment present a new Bivens
context. See Alexander v. Ortiz, Civ. No. 15-6981(JMS-AMD), 2018
WL 1399302 at *5 (First Amendment retaliation claim in prison
employment is a new Bivens context); Turner v. Doe, Civ. No. 155942(RBK)(AMD), 2018 WL 2278096 at *4 (D.N.J. May 18, 2018) (Fifth
Amendment prison employment discrimination claim is new Bivens
context). The Court must conduct a special factors analysis to
determine whether to imply a Bivens remedy for Plaintiff’s class
of one equal protection claim under the Fifth Amendment.

b.

Special factors analysis

Defendants have set forth several special factors that this
Court finds counsel hesitation in recognizing a Bivens remedy here.
As the Supreme Court noted in Abbasi,
[c]laims against federal officials often
create substantial costs, in the form of
defense and indemnification. Congress, then,
has a substantial responsibility to determine
whether, and the extent to which, monetary and
other liabilities should be imposed upon
individual officers and employees of the
Federal Government. In addition, the time and
administrative
costs
attendant
upon
intrusions resulting from the discovery and
trial process are significant factors to be
considered.
137 S.Ct at 1856.

14

The PLRA, 42 U.S.C. §1997e et seq., demonstrates Congress’
concern over the costs of prison litigation. Indeed, the Supreme
Court recognized that the PLRA “contains a variety of provisions
designed to bring [prisoner litigation in the federal courts] under
control” after a steep rise in filings. Woodford v. Ngo, 548 U.S.
81, 84 (2006). Potential defense and indemnification costs place
a responsibility on Congress to “determine whether, and the extent
to which, monetary and other liabilities should be imposed upon
individual officers and employees of the Federal Government.”
Abbasi, 137 S.Ct. at
analogous

to

42

1856. Congress has not yet enacted a statute

U.S.C.

§

1983

to

remedy

all

constitutional

violations by federal actors, and there is little doubt that doing
so

would

increase

actions

against

individual

officers

and

employees of the Federal Government. See Abbasi, 137 S.Ct. at 1862
(“in any inquiry respecting the likely or probable intent of
Congress, the silence of Congress is relevant. . . .”)
In

Woodford,

the

Supreme

Court

recognized,

“[t]he

PLRA

attempts to eliminate unwarranted federal-court interference with
the

administration

of

prisons,

and

thus

seeks

to

‘affor[d]

corrections officials time and opportunity to address complaints
internally before allowing the initiation of a federal case.” 548
U.S. at 93 (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)).
This is an indication by Congress that the executive branch is
best-suited to make decisions that concern prison administration.
15

Therefore, this is a factor that counsels hesitation in implying
a Bivens remedy in a new context of prison work assignments. See
Rodriguez v. Hamel, Civ. No. 15-7980(NLH)(KMW), 2018 WL 2254557 at
*5 (D.N.J. May 17, 2018) (because First Amendment claims in prison
housing and workplace are regulated by legislative and executive
branches, special factors counsel hesitation in implying a Bivens
remedy); Bell, 441 U.S. at 548 (“judicial deference is accorded
[to prison administrators] . . . because the operation of our
correctional

facilities

is

peculiarly

the

province

of

the

Legislative and Executive Branches of our Government, not the
Judicial” (citations omitted)).
In Bush v. Lucas, the Supreme Court declined to create a
Bivens remedy against individual Government officials for a First
Amendment violation arising in the context of federal employment
of a non-prisoner, although the plaintiff had no opportunity to
fully remedy the constitutional violation. Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 68 (2001) (citing Bush, 462 U.S. 367 (1983)).
In contrast, Plaintiff, by nature of his unique claim, had an
opportunity for a monetary remedy under the Federal Bureau of
Prisons Administrative Remedy Program, 28 C.F.R. §§ 542.10 et seq.
“The purpose of the Administrative Remedy Program is to allow an
inmate to seek formal review of an issue relating to any aspect of
his/her own confinement.” 28 C.F.R. § 542.10(a). Plaintiff’s claim
was that his pay for a prison work assignment was improperly
16

docked. The Administrative Remedy Program could provide a remedy
by correcting Plaintiff’s pay if appropriate. See Vega v. United
States, 881 F.3d 1146, 1154 (9th Cir. 2018) (BOP Administrative
Remedy Program provided alternative means for relief for violation
of prisoner’s First and Fifth Amendment rights); cf. Bistrian v.
Levi, --- F.3d ---, 2018 WL 6816924 at *8 (3d Cir. 2018) (the
prison

administrative

grievance

process

could

not

redress

prisoner’s harm, a beating that he took in the prison yard).
Therefore, the availability of an alternative remedy counsels
hesitation in implying a Bivens remedy in this case. See Abbasi,
137 S.Ct. at 1858 (“if there is an alternative remedial structure
present in a certain case, that alone may limit the power of the
Judiciary to infer a new Bivens cause of action.”) Therefore, in
the aggregate, special factors counsel hesitation in implying a
Bivens remedy in this case.
C.

FTCA Claim
1.

Legal Standard

“The FTCA waives the federal government's sovereign immunity
with respect to tort claims for money damages.” Baer v. United
States, 722 F.3d 168, 172 (3d Cir. 2013) (citing 28 U.S.C. §
1346(b)(1)). “‘[T]he FTCA does not itself create a substantive
cause of action against the United States; rather, it provides a
mechanism for bringing a state law tort action against the federal
government in federal court.’” Lomando v. United States, 667 F.3d
17

363, 372 (3d Cir. 2011) (quoting In re Orthopedic Bone Screw Prod.
Liab. Litig., 264 F.3d 344, 362 (3d Cir. 2001); see also CNA v.
United States, 535 F.3d 132, 141 (3d Cir. 2008) (“The cause of
action in an FTCA claim ... must come from state tort law.”))
“[T]he United States is subject to suit for the negligent acts of
‘any employee of the Government while acting within the scope of
his office or employment.’” Id. at 374, quoting 28 U.S.C. §
1346(b)(1)).
2.

The Parties’ Arguments

Defendants submit that the gravamen of Plaintiff’s FTCA claim
is that staff at FCI Fort Dix should have changed his work
assignment

or

exempted

him

from

work

based

on

his

alleged

disabilities. (Defendants’ Brief, ECF No. 69 at 17.) Defendants
assert this is not a substantive tort claim because there is no
duty under New Jersey law or any professional standard requiring
correctional officers to reassign or exempt a prisoner from a work
assignment.
Defendants also contend that Plaintiff’s FTCA claim fails
because

the

Inmate

Accident

Compensation

Act

provides

the

exclusive remedy for any negligence-based claims arising from an
inmate’s alleged work-related injuries. (Id. at 19.)
3.

Analysis
a.

State law basis for FTCA Claim

18

In his Amended Complaint, Plaintiff summarizes his FTCA claim
as follows:
Defendant United States of America did employ
the named Defendants through the Department of
Justice, Federal Bureau of Prisons, Federal
Correctional Institution Fort Dix during the
period of time and dates set forth in this
complaint. Defendant United States of America
is liable for the tortious conduct of the
named Federal Government employees named as
Defendants within this lawsuit. Plaintiff
assigns liability to the United States of
America for his damages incurred both physical
and psychological, both compensatory and
punitive.
(Am. Compl., ECF No. 5 at 25.)
New Jersey recognizes a common law negligence claim. See,
e.g., Weinberg v. Dinger, 524 A.2d 366, 373-74 (N.J. 1987); Brunson
v. Affinity Federal Credit Union, 972 A.2d 1112 (N.J. 2009). There
are four elements to a New Jersey common law negligence claim: (1)
a duty of care; (2) a breach of that duty; (3) actual and proximate
causation, and (4) damages. Jersey Cent. Power & Light Co. v. Melar
Util. Co., 59 A.3d 561, 571 (N.J. 2013). Violations of regulations
are pertinent in determining the nature and extent of any duty of
care. Steinberg v. Sahara Sam’s Oasis, LLC, 142 A.3d 742, 752-53
(N.J. 2016). “‘Facts that demonstrate [a regulatory] violation
constitute evidence of negligence that is sufficient to overcome
a

motion

for

summary

judgment.’”

Id.

at

753

(alteration

in

Steinberg) (quoting Alloway v. Bradlees, Inc., 723 A.2d 960, 970
(N.J. 1999)).
19

In

screening

Plaintiff’s

Amended

Complaint,

this

Court

construed Plaintiff’s allegations that Defendants violated BOP
Program Statements and regulations as part of his FTCA claim.
(Opinion, ECF No. 8 at n.2.) However, Plaintiff did not allege in
his Amended Complaint that violation of BOP Program Statement
1040.04 (Non-Discrimination Toward Inmates) and Program Statement
3713.29 (Diversity Management and Affirmative Employment Programs)
caused him physical injury but rather emotional or psychological
injury. (Am. Compl., ECF No. 5 at 15, 16, 21.)
“[A]s part of the Prison Litigation Reform Act . . . section
1346(b)(2) of the FTCA precludes inmate tort actions against the
United States for ‘mental or emotional injury suffered while in
custody without a p29.rior showing of physical injury or the
commission of a sexual act,’ 28 U.S.C. § 1346(b)(2).” West v.
United States, 729 F. App'x 145, 148–49 (3d Cir. 2018), reh'g
denied (May 9, 2018) (per curiam). The Court will grant Defendants’
motion for judgment on the pleadings on Plaintiff’s FTCA claim
based on BOP Program Statements 1040.04 and 3713.29.
Plaintiff alleged the following in his Amended Complaint,
which forms the basis of his remaining FTCA claim. “Defendant
United States of America was at all times responsible for the care
and custody of the Plaintiff while in Bureau of Prisons Federal
Correctional Institution Fort Dix.” (Am. Compl., ECF No. 5 at 4,
¶13A.)

“On

December

7,

2015,
20

Plaintiff

did

file

a

[sic]

Administrative Federal Tort Claim for personal injury resulting
from

prison

employees[’]

negligence.

(28

U.S.C

§

2671)

‘Administrative Claim No. TRT-NER-2016-01440.’ Defendant Federal
Bureau of Prisons denied claim on June 2, 2016, by Certified Mail
No. 7012 2210 0001 4156 7076.” (Id. at 5, ¶16.)
Plaintiff further alleged that
[I]n view of the fact that the Plaintiff has
not had an MRI of his spine done with contrast
as was recommended by (2) two doctors in
January of 2015. It was not until June of 2016
that the Plaintiff was seen by a neurosurgeon
to be evaluated. This was a full year that the
Plai[ntiff] was compelled under threat of
disciplinary action to work a job in FCI Fort
Dix by the listed Defendants in complete
disregard to the Plaintiff’s documented
disabilities in an attitude of deliberate
indifference to this Plaintiff’s suffering
from
his
physical
and
psychological
disabilities.
. . .
33. Defendant Colina did compel the Plaintiff
to stay at work in the Food Services #10 dining
hall in physically demanding positions that
directly caused the Plaintiff physical pain
and suffering to his spine. These jobs
consisted in bending over wiping tables when
the Plaintiff had a written recommendation
from FCI Fort Dix medical department that he
should not be bending at the waist. Plaintiff
was also compelled by Defendant Colina to work
in a serving line carrying and handling trays
of food that weighed more than the weights
that the Plaintiff was not to lift as per his
disabilitie[s].
. . .

21

34. . . . Defendant Colina should have been
subject to penalties for disciplinary offenses
as are set forth in Attachment A of Program
Statement 3420.11 which are as follows: (#15)Endangering the safety of or casing injury to
staff, inmates, or others through carelessness
or failure to follow instructions; (#16)
giving an inmate an order that could be
hazardous to health and safety; (#25) Physical
abuse of an inmate [insofar as it relates to
forcing Plaintiff to work beyond his physical
abilities] . . .2 Defendant Colina was also in
violation of 28 CFR 545.23-Inmate Work Program
Assignment 1(a)-Each sentenced inmate who is
physically and mentally able to be assigned to
an institutional work program, by his not
allowing the Plaintiff to be relieved of work
duties in the kitchen when he was told by the
Plaintiff of his disabilities and offered to
be shown disability papers from the Social
Security Administration Law Court declaring
the Plaintiff 100% disabled in 1988.
(Am. Compl., ECF No. 5 at 13-15.)
The BOP regulates inmate work and program assignments under
28 C.F.R. § 545.23(d), which provides:
In
making
the
work
and/or
program
assignment(s), staff shall consider the
inmate's
capacity
to
learn,
interests,
requests, needs, and eligibility, and the
availability of the assignment(s). An inmate's
assignment shall be made with consideration of
the institution's security and operational
needs, and should be consistent with the
safekeeping of the inmate and protection of
the public.
2

Plaintiff does not allege a physical injury resulting from
Colina’s alleged violation of Program Statement 3420.11 (#30)
Preferential treatment of inmates, (#38) Conduct that can lead
others to question on employee’s impartiality, and (#56) Failure
to report a violation of the standards of conduct or retaliation
or discrimination against those who make such a report . Therefore,
this allegation is not part of Plaintiff’s FTCA claim.
22

Violations of regulations are pertinent in determining the nature
and extent of any duty of care. Steinberg, 142 A.3d at 752-53.
Therefore, a New Jersey common law negligence claim provides the
basis for Plaintiff’s FTCA claim. See, e.g., Greenland v. United
States, 661 F. App’x 210, 214-15 (3d Cir. 2016) (recognizing common
law negligence as a basis for FTCA claim.)
b.

Inmate Accident Compensation
precludes FTCA claim

Act

Defendants also seek judgment on the pleadings on Plaintiff’s
FTCA claim because the Inmate Accident Compensation Act provides
the exclusive remedy for any negligence-based claims arising from
an inmate’s alleged work-related injuries. (Defendants’ Brief, ECF
No. 65-1 at 19-20.) Plaintiff’s FTCA claim, described above, is
based on injuries he alleges from being forced to work beyond his
physical limitations.
“Federal
sustained

prisoners

during

penal

seeking
employment

compensation
are

limited

for
to

injuries

the

remedy

provided by 18 U.S.C. § 4126.” Cooleen v. Lamanna, 248 F. App’x
357, 362 (3d Cir. 2007) (citing United States v. Demko, 385 U.S.
149, 151-54 (1966)); Mays v. U.S., 567 F. App’x 81, 82 (3d Cir.
2014) (same). In 1966, the Supreme Court held “[u]ntil Congress
decides differently we accept the prison compensation law [18
U.S.C. § 4126] as an adequate substitute for a system of recovery
by common-law torts.” Demko, 385 U.S. at 153. Thus, the Court
23

concludes

the

Inmate

Accident

Compensation

Act

provides

the

exclusive remedy for the claim Plaintiff asserts under the FTCA.
The Court will grant Defendants’ motion for judgment on the
pleadings on the FTCA claim.
IV.

PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiff’s motion for temporary restraining order is based

on his claim that he is
being subjected to identical ‘retaliation’ and
‘obstruction’ by the same Defendants with
different actors at L.S.C.I. Allenwood [“FCI
Allenwood
Low”]
for
the
purposes
of
retaliating
against
him
for
filing
an
Administrative Remedy Request and forcing
Plaintiff to work in Food Service to remove
Plaintiff from the Law Library to interfere
with Plaintiff filing responses to dispositive
motions in this Court and the U.S. District
Courts of Maine and New Hampshire and New
York.
(Mot. for TRO, ECF No. 68 at 1.)
The instant action arises out of incidents that occurred in
FCI Fort Dix. The Court assumes that by “the same Defendants”
Plaintiff refers to the fact that both FCI Fort Dix and FCI
Allenwood Low are part of the Federal Bureau of Prisons, an
administrative

agency

within

the

Department

of

Justice.

The

Federal Bureau of Prisons is not a defendant in this action,
although

the

United

States

of

America

is

the

defendant

to

Plaintiff’s FTCA claim. The “different actors” Plaintiff refers to
are likely the individual prison employees or officials at FCI

24

Allenwood

Low

whom

Plaintiff

alleges

retaliated

against

or

obstructed him from working on his pro se litigation.
Plaintiff alleges he is likely to succeed on the merits of
his claims that arose at FCI Allenwood Low because those claims
are “practically the same claims made by the Plaintiff in the case
at bar.” The relief Plaintiff seeks is
a TRO directing the Defendant Federal Bureau
of Prisons and their employees to cease and
desist in obstructing the Plaintiff JAMES
STILE from doing his legal work in the law
library and for the FBOP to at least put
Plaintiff back in Recreation job and/or grant
a complete dispensation from any work detail
in order to attempt to meet the Court Orders
of the numerous Courts [in which Plaintiff is
a pro se litigant]. Further relief should be
ordered that the Plaintiff not be transferred
to another Federal Correctional Institution
until Plaintiff has at least met obligations
to respond to dispositive motions that are
pending i[n] U.S. District Courts.
(ECF No. 68 at 5.)
Federal Rule of Civil Procedure 65(b) provides:
(b) Temporary Restraining Order.
(1) Issuing Without Notice. The court may
issue a temporary restraining order
without written or oral notice to the
adverse party or its attorney only if:
(A) specific facts in an affidavit
or a verified complaint clearly show
that
immediate
and
irreparable
injury, loss, or damage will result
to the movant before the adverse
party can be heard in opposition;
and

25

(B) the movant's attorney certifies
in writing any efforts made to give
notice and the reasons why it should
not be required.
A temporary restraining order may be available if there is a
possibility that irreparable injury will occur before the hearing
on a preliminary injunction required by Rule 65(a) can be held.
Trefelner ex rel. Trefelner v. Burrell School Dist., 655 F.Supp.2d
581, 588-89 (W.D. Pa. 2009). “The standard used to evaluate whether
the issuance of a temporary restraining order is warranted is the
same as that used to evaluate whether the issuance of a preliminary
injunction is appropriate.” Ne. Lumber Manufacturers Ass'n v. Sky
of New York Corp., No. CV 16-9487, 2016 WL 7491903 at *2 (D.N.J.
Dec. 29, 2016) (quoting Int’l Foodsource, LLC v. Grower Direct Nut
Co., Inc., Civ. No. 16-cv-3140(WHW)(CLW), 2016 WL 4150748 at *6
(D.N.J. Aug. 3, 2016)).
A party seeking a preliminary injunction must
show: (1) a likelihood of success on the
merits; (2) that it will suffer irreparable
harm if the injunction is denied; (3) that
granting preliminary relief will not result in
even greater harm to the nonmoving party; and
(4) that the public interest favors such
relief.
Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004).
Plaintiff cannot establish the likelihood of success on the
merits

of

claims

that

are

not

at

issue

in

this

litigation.

Plaintiff’s claims in this case arose out incidents that occurred
while he was incarcerated in FCI Fort Dix. The facts he asserts in
26

support of his motion for a temporary restraining occurred while
he was incarcerated at FCI Allenwood Low. Plaintiff asserts that
he is exhausting his administrative remedies for his new claims.
It

appears

that

Plaintiff

has

not

yet

filed

a

lawsuit

asserting his claims arising out of his incarceration in FCI
Allenwood

Low.

When

he

does

so,

his

motion

for

a

temporary

restraining order may be brought in that action. In any event,
Plaintiff’s remaining claims in this action will be dismissed
because the Court will grant Defendants’ motion for judgment on
the pleadings. Plaintiff cannot show the likelihood of success in
a similar action based on this action because the Court ultimately
dismissed all of Plaintiff’s claims.
V.

CONCLUSION
For

the

Defendants’

reasons
motion

discussed

for

judgment

above,
on

the

the

Court

pleadings

will
and

grant
deny

Plaintiff’s motion for a temporary restraining order.
An appropriate Order follows.
Date: January 22, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

27