STILE v. FEDERAL BUREAU OF PRISONS et al
Filing
8
OPINION. Signed by Judge Renee Marie Bumb on 10/20/2016. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JAMES STILE,
Plaintiff,
v.
UNITED STATES OF AMERCIA, et al.,
Defendants.
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CIV. NO. 16-3832 (RMB)
OPINION
RENÉE MARIE BUMB, U.S. District Judge
This matter comes before the Court upon Plaintiff’s submission
of an amended civil rights complaint, and an application to proceed
in forma pauperis. (Am. Compl., ECF No. 5; IFP App., ECF No. 3.)
Plaintiff is a prisoner confined in FCI Fort Dix. (Am. Compl., ¶3.)
His IFP application is properly completed and establishes his
financial inability to prepay the $400.00 filing fee.
I.
SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(b) and § 1915A
The Court is required to review a prisoner’s civil rights
complaint under 28 U.S.C. § 1915(e)(2)(b) and § 1915A, and must
dismiss any claims that are: (1) frivolous or malicious; (2) fail
to state a claim on which relief may be granted; or (3) seek monetary
relief against a defendant who is immune from such relief. This Court
preliminarily screened Plaintiff’s original complaint (Compl., ECF
1
No. 1) and found that Plaintiff failed to state a claim upon which
relief may be granted. (Order, ECF No. 2.) The Court now reviews
Plaintiff’s Amended Complaint.
II.
DISCUSSION
A.
The Amended Complaint
The defendants in Plaintiff’s Amended Complaint include the
United States of America, Fort Dix Correctional Officers M. Colina,
A. Burns, Malloy, R. Robinson, Kwartin, Hazelwood, Mason, Rehwinkle,
Wilkes, and Warden Hollingsworth. (Am. Compl., ¶¶5-13(b)). Plaintiff
asserts jurisdiction under Bivens; 42 U.S.C. §§ 1981, 1981a; 42
U.S.C. § 12101, 42 U.S.C. § 2000e-3, and 28 U.S.C. § 2671. (Id., ¶14.)
He alleges exhaustion of the available administrative remedies for
his Bivens and FTCA claims. (Id., ¶16.)
In his Statement of Facts, Plaintiff alleges that in the Fall
of 2015, he asked Colina, an employee of the Federal Bureau of Prisons
assigned to work in Food Services #10, if he could be relieved from
his work assignment in the dining hall because he needed to do legal
work to meet the court-mandated deadlines for filing. (Am. Compl.,
ECF No. 5, ¶17.) Colina refused. (Id.) Plaintiff went to Colina’s
supervisor, Burns, who referred Plaintiff back to Colina. (Id.)
Plaintiff
alleges
the
decision
not
to
relieve
him
of
work
responsibilities before his 180th day of employment violated his
2
right of access to the courts, and his right to procedural due
process. (Id., ¶18.)
Plaintiff provided each defendant with a copy of BOP Program
Statement
1315.07I,
which
allows
dispensation
from
work
responsibilities based on impending court deadlines, and he also
filed administrative remedy forms and cop-outs to let the defendants
know
about
his
grievance.
(Id.)
Plaintiff
suffered
emotional
distress because he was not given time off work to spend on his
litigation. (Id.)
On November 9, 2015, Colina forced Plaintiff to put his medical
and legal work away under threat of a disciplinary report. (Id., ¶19.)
Plaintiff alleges this was discrimination because there were other
workers who failed to perform their work duties and were not treated
the same way. (Id.) He explained to Colina that he was looking for
an MRI report to bring to his medical appointment the next morning,
and that he had court-mandated deadlines for his legal work. (Id.)
On November 10, 2015, Plaintiff had a medical appointment and
did not report to work. (Id., ¶20.) Colina wrote a retaliatory
disciplinary report against Plaintiff, knowing Plaintiff had told
him about his medical appointment the previous day. (Id.) Plaintiff
asserts retaliation under 42 U.S.C. § 2000e-3. In response to his
3
grievance about retaliation, he was intimidated into signing an
informal resolution. (Id., ¶21.)
Plaintiff
repeatedly
asked
Correctional
Officer/Counselor
Malloy for assistance in obtaining time off work to go to the law
library. (Id., ¶22.) Malloy would not help. (Id.) Plaintiff also
sought help from Malloy’s supervisor, Robinson, the housing unit
manager. (Id., 23.) Plaintiff signed an informal resolution with
Robinson on November 12, 2015. (Id., ¶26.) After Plaintiff told
Malloy the informal resolution of his grievances was no longer
satisfactory, Malloy told Plaintiff he was on a list as a problem
inmate. (Id., ¶26.) Plaintiff alleges this is “profiling and
discrimination in violation of Federal statutes.” (Id.)
Plaintiff contends Colina discriminated against him again by
reducing his work hours in violation of 42 U.S.C. § 1981, 1981A; and
this was done in retaliation against him for filing a BP-8 against
Colina. (Id., ¶ 27.) He asked Malloy for another BP-8 grievance to
file against Colina. (Id.) When Plaintiff reported to work later that
day, Colina asked him if he was going to file a BP-8 regarding the
reduction in his work hours, and Plaintiff responded “yes.” (Id.,
¶29.) Later that day, Plaintiff offered to informally resolve the
dispute without filing the BP-8, if Colina would agree not to “take”
his hours. (Id.) Colina refused and filed a disciplinary report
4
against Plaintiff for offering a bribe. (Id., ¶30.) This caused
exacerbation of Plaintiff’s PTSD and panic disorder (Id.)
Plaintiff is 60-years-old, and has been found disabled by the
Social Security Administration since 1988. (Id., ¶31.) He was in in
medical segregation for spinal injuries for 10-months prior to his
admission to FCI Fort Dix, and his muscles were atrophied when he
arrived. (Id.) He was assigned to a second floor room and a food
services work assignment over his objections. (Id.) He did not have
a neurological examination prior to his work assignment. (Id.)
The medical work limitations assigned by Dr. Sood at FCI Fort
Dix did not match the work limitations Plaintiff was given outside
of prison in connection with his social security disability finding.
(Id.) Dr. Sood recommended yoga for Plaintiff’s spinal pain. (Id.)
Plaintiff was not been provided an MRI of his spine with contrast,
which was ordered by two doctors in January 2015. (Id.) He was not
seen by a neurosurgeon until January 2016. (Id.) Plaintiff alleges
all defendants were advised of his disabilities and that he should
not be compelled to work. (Id., ¶32.) Colina compelled Plaintiff to
perform work that was prohibited by the work limitations recommended
by the FCI Fort Dix medical department, including bending at the waist
and lifting weights in excess of his medical restrictions. This
exacerbated pain in his spine. (Id., ¶33.)
5
In the “Causes of Action” section of his Amended Complaint,
Plaintiff explains the legal basis for his claims against each
defendant. (Am. Compl., ¶34A-34J.) It is in this Section of the
Amended Complaint that Plaintiff attempts to cure the deficiencies
of his original complaint, which this Court described in its Order
dated August 26, 2016.
First, in Paragraph 34A, Plaintiff claims that Colina violated
the following BOP Program Statements and regulations:
3420.11 Standards of Conduct;
1040.04 Non-discrimination, in violation of Policy 551.90;
28 C.F.R. § 545.23 by not allowing Plaintiff to be relieved of
work duties in the kitchen based on his disability;
Program Statement 3713.29 by discriminating against Plaintiff.
Second, Plaintiff alleges Colina retaliated against him in
violation of 42 U.S.C. § 2000e-3 by writing two disciplinary reports.
Plaintiff further alleges Colina violated his rights under 42 U.S.C.
§§ 1981, 1981a by intentionally discriminating against him in the
workplace.
Third, Plaintiff contends Colina’s refusal to give him time off
work to meet his legal deadlines exacerbated Plaintiff’s PTSD and
panic disorder, caused him to attend psychological services at Fort
Dix, which in turn caused him to untimely file pleadings in two civil
actions in the U.S. District Court, District of Maine. He also alleges
6
the District Court in Maine made rulings on his motions before he
had time to reply, preventing him from having a fair hearing.
Plaintiff alleges Colina, Burns, Malloy, Robinson, Mason, Kwartin,
Hazelwood,
Rehwinkle,
Wilkes
and
Hollingsworth
knew
of
his
court-mandated deadlines and were deliberately indifferent to his
legal responsibilities and to the “physical and psychological
suffering . . . caused by their actions and inactions.”
Fourth, Plaintiff asserts the exacerbation of his PTSD and panic
disorder are injuries directly attributable to denial of access to
the courts, and this should be sufficient to sustain his access to
courts claim.
Fifth, Plaintiff alleges Colina and Burns discriminated against
him by paying him less than other similarly situated inmates employed
in Food Services #10. Plaintiff alleges “[o]ther inmates were on the
job for the same hours as the Plaintiff but were paid more hours
amounti[ng] to as much as more than 100% greater than the Plaintiff.”
He further alleges he was docked as much as one-hour of work per day
for receiving medications, while other inmates were not docked to
this extent. Plaintiff claims this conduct violated his right to
equal protection under the law because “[t]here was no rational basis
for the treating of the Plaintiff differently than the other kitchen
7
workers by deducting one hour daily from the Plaintiff for getting
medications and not for the other inmates.”
Sixth, Plaintiff explains his retaliation claims as follows.
He alleges a liberty interest in remaining “shot free,” meaning free
of disciplinary infractions that can result in loss of good time
credit. He claims that Colina’s two disciplinary reports against him
resulted in “negative notations” in his record. Although the
disciplinary reports did not result in serious sanctions, they
resulted in exacerbation of his PTSD and panic disorder because he
was subjected to grueling interrogation “and then sanctions that are
yet to be dispensed by the U.S. District Court of Maine in docket
2:14-CV-00406JAW.” Plaintiff asserts the disciplinary reports were
written in response to his filing administrative grievances against
Colina.
Burns
“approved
Colina’s
behavior”
by
co-signing
the
disciplinary reports.
In support of his ADA claims, Plaintiff explains that Defendants
were aware of his disabilities through medical documentation in their
possession, but they compelled Plaintiff to participate in a work
program despite his disabilities, and this precluded him from full
access to the law library, which was available to others. Therefore,
Plaintiff contends that but for Defendants’ failure to accommodate
8
his physical disabilities, he would have had full access to the law
library facilities.
For his claims against Burns, Plaintiff alleges in Paragraph
34B that Burns is liable as Colina’s direct supervisor. He further
alleges Burns directly participated in coercive informal resolution
of the BP-8 against Colina. Plaintiff also asserts Malloy failed to
intervene on his behalf. (Am. Compl., ¶34C.)
Plaintiff
seeks
to
hold
Robinson,
Mason
and
Warden
Hollingsworth liable because they reviewed Plaintiff’s numerous
grievances and failed to act. (Id., §§34D, E, G.) Plaintiff also
contends Hazelwood is liable “for his failure to act within his job
description as Associate Warden of Food Services at F.C.I. Fort Dix.”
(Id., ¶34F.) Hazelwood agreed that Program Statement 1315.07I
allowed Plaintiff to be granted a dispensation from work, and that
Plaintiff’s physical disabilities should have exempted him from work
duties in Food Services #10 dining hall, but he did nothing to
intervene on Plaintiff’s behalf. (Id.)
In addition to claiming that Officer Rehwinkle “shares the same
culpability” as the other defendants for failing to intervene on
Plaintiff’s behalf, Plaintiff alleges Rehwinkle failed to respond
to his requests for more frequent mental health treatment, and was
responsible for Plaintiff’s continued suffering by delaying a
9
recommendation to have Plaintiff removed from the work detail in Food
Service #10. (Id., ¶34H.)
Plaintiff seeks to hold Defendant Wilkes, the Assistant Medical
Director at FCI Fort Dix, liable based on his awareness of Plaintiff’s
claims through his grievances. (Id., ¶34I.) Plaintiff also alleges
Wilkes failed to obtain Plaintiff’s medical records “for many
months,” and refused to view Plaintiff’s MRI reports, and the Social
Security Administration’s ruling on his disability based on spinal
injuries.
Plaintiff alleges Officer Kwartin is liable for refusing to
authorize a job change for Plaintiff, which was part of Kwartin’s
responsibilities as a Correctional Officer on the West Compound of
FCI Fort Dix. (Id., ¶34J.) Finally, Plaintiff added the United States
of America as the defendant to his FTCA claim, based on the alleged
negligence of the individual defendants. (Id.)
B.
Standard of Review
A pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
10
544, 570 (2007)). “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.”
Id. (quoting Twombly, 550 U.S. at 556.)
“[A] court must accept as true all of the allegations contained
in a complaint.” Id. A court need not accept legal conclusions as
true. Id. Legal conclusions, together with threadbare recitals of
the elements of a cause of action, do not suffice to state a claim.
Id. Thus, “a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at
679. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. If
a complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice, but must permit the
amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002).
C.
Retaliation under 42 U.S.C. § 2000e-3
As this Court noted in screening Plaintiff’s original complaint
(Order, ECF No. 2 at 16-17), “[i]t is well established that a prisoner
is not an employee under the Fair Labor Standards Act (FLSA), because
the relationship is not one of employment, but arises out of the
11
prisoner's status as an inmate.” Wilkerson v. Samuels, 524 F. App’x
776, 779 (3d Cir. 2013)(per curiam); (citing Tourscher v. McCullough,
184 F.3d 236, 243 (3d Cir. 1999);
Vanskike v. Peters, 974 F.2d 806,
809 (7th Cir. 1992)). Similarly, there is no employment relationship
between a prisoner and a prison under Title VII. Wilkerson, 524 F.
App’x at 779 (citing Williams v. Meese, 926 F.2d 994, 997 (10th Cir.
1991)); see also E.E.O.C. Dec. No. 86–7, *3, 40 Fair Empl.Prac.Cas.
(BNA) 1892 (1986)). Therefore, the Court will dismiss with prejudice
Plaintiff’s Title VII retaliation claims under 42 U.S.C. 2000e-3,
for failure to state a claim pursuant to 28 U.S.C. §§ 1915A,
1915(e)(2)(b).
D.
Violation of the Americans with Disabilities Act under 42
U.S.C. § 12101
The Americans with Disabilities Act prohibits “federally funded
state programs from discriminating against a disabled individual
solely by reason of his or her disability.” Matthews v. Pennsylvania
Dept. of Corr., 613 F. App’x 163, 167 (3d Cir. 2015). Public entities
must make reasonable modifications to their programs and policies
“in order to avoid discrimination on the basis of disability.” Id.
(citing 28 C.F.R. § 35.130(b)(7)). To state a claim under the ADA,
plaintiffs must allege that:
(1) they are handicapped or disabled as defined
under the statutes; (2) they are otherwise
qualified to participate in the program at
12
issue; and (3) they were precluded from
participating in a program or receiving a
service or benefit because of their disability.
CG v. Pennsylvania Dept. of Educ., 734 F.3d 229, 235 (3d Cir. 2013)
(citing Chambers ex rel. Chambers v. School Dist. of Philadelphia
Bd. of Educ., 587 F.3d 176, 189 (3d Cir. 2009)).
Plaintiff alleges he has a disability affecting his spine, for
which he received benefits under the Social Security Disability
Program. He further alleges that because he was forced to work in
food services despite this disability, he was denied full access to
the law library.
While Plaintiff may have a Bivens claim based on his allegations
of being forced to work beyond his physical capacity, he was not
prevented
from
using
the
law
library
based
on
his
physical
limitations; he simply could not use the law library as often as he
liked because he had a job assignment. Plaintiff’s ADA claim will
be dismissed with prejudice.
E.
Discrimination under 42 U.S.C. §§ 1981, 1981a
42 U.S.C. § 1981 provides:
(a) Statement of equal rights
All persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and
enforce contracts, to sue, be parties,
give evidence, and to the full and equal
13
benefit of all laws and proceedings for the
security of persons and property as is
enjoyed by white citizens, and shall be
subject to like punishment, pains,
penalties, taxes, licenses, and exactions
of every kind, and to no other.
(b) “Make and enforce contracts” defined
For purposes of this section, the term
“make and enforce contracts” includes the
making, performance, modification, and
termination
of
contracts,
and
the
enjoyment of all benefits, privileges,
terms, and conditions of the contractual
relationship.
(c) Protection against impairment
The rights protected by this section are
protected
against
impairment
by
nongovernmental
discrimination
and
impairment under color of State law.
42 U.S.C. § 1981a provides for damages based on violation of 42
U.S.C.A. § 2000e-3, and under the Americans with Disabilities Act.
“[T]o state a claim under 42 U.S.C. § 1981, a plaintiff is
required to plead facts demonstrating that the plaintiff is [a]
member of a racial minority, that there was intent to discriminate
on the basis of race by the defendant, and that discrimination
concerned one or more of the activities enumerated in the statute.”
Mannery v. Miller, Civ. Action No. 07-315, 2007 WL 1395358, at *2
(W.D. Pa. May 9, 2007)(citing Mian v. Donaldson, Lufkin & Jenrette
Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); Imagineering,
14
Inc. v. Kiewit Pac. Correctional Officer, 976 F.2d 1303, 1313 (9th
Cir. 1992)(under section 1981, plaintiff must allege facts that would
support an inference that defendant intentionally and purposefully
discriminated against him); Hood v. New Jersey Dep't of Civil
Service, 680 F.2d 955, 959 (3d Cir. 1982)).
Plaintiff has not alleged discrimination on the basis of race.
Therefore, 42 U.S.C. § 1981 is inapplicable to him. Plaintiff’s claim
under § 1981a will also be dismissed with prejudice because it does
not create an independent cause of action. See Pollard v. Wawa Food
Market, 366 F.Supp.2d 247, 252 (E.D. Pa. April 19, 2005)(listing
cases).
F.
Bivens Claims
In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 395 (1971), the Supreme Court held that
damages may be obtained for injuries caused by “a violation of the
Fourth Amendment by federal officials.” Bivens also extends to Eighth
Amendment claims by prisoners, see e.g., Carlson v. Green, 446 U.S.
14 (1980), First Amendment retaliation claims, see Hartman v. Moore,
547 U.S. 250, 256 (2006), and Fifth Amendment substantive due process
and equal protection claims, see e.g. Argueta v. U.S. Immigration
and Customs Enforcement, 643 F.3d 60, 67 (3d Cir. 2011).
15
In the limited settings where Bivens applies, “the implied cause
of action is the ‘federal analog to suits brought against state
officials under ... 42 U.S.C. § 1983.’” Iqbal, 556 U.S. at 675–76
(quoting Hartman, 547 U.S. at 254 n. 2). “If a federal prisoner in
a BOP facility alleges a constitutional deprivation, he may bring
a Bivens claim against the offending individual officer, subject to
the defense of qualified immunity.” Corr. Services. Corp. v. Malesko,
534 U.S. 61, 72 (2001).
Like § 1983 claims, there is no respondeat superior liability
under Bivens, a defendant must have personal involvement in the
constitutional violation for liability to attach. Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009). A supervisor, however, may be liable for
his own misconduct. Barkes v. First Corr. Medical, Inc., 766 F.3d
307, 320 (3d Cir. 2014) reversed on other grounds by Taylor v. Barkes,
135 S.Ct. 2042 (2015). The level of intent necessary to establish
supervisory liability varies with the underlying constitutional
tort. Id. at 319. For example, if the underlying tort is denial of
adequate medical care under the Eighth Amendment, the mental state
required to hold a supervisor liable for his own misconduct is
deliberate indifference. Id.
Plaintiff alleges violation of his First Amendment right of
access to the courts, retaliation in violation of his First Amendment
16
right to file a grievance; and violation of his right to equal
protection and procedural due process under the Fifth Amendment.
Plaintiff also alleges he was forced to work beyond his physical
ability, causing him physical and emotional pain, a claim that falls
under the Eighth Amendment proscription against cruel and unusual
punishment.
1.
First Amendment Right of Access to the Courts
Plaintiff alleges Colina’s failure to give him time off from
his prison work assignment to meet court-mandated deadlines in his
litigation violated his First Amendment right of access to the
courts. “[T]o pursue a claim of denial of access to the courts an
inmate must allege actual injury, such as the loss or rejection of
a legal claim.” Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir.
1997)(citing
Lewis
v.
Casey,
116
S.Ct.
2174,
2179
(1996)).
Plaintiff’s allegation that he untimely filed pleadings in his legal
actions does not rise to the level of an actual injury. Unless his
legal claim was rejected due to his untimely filing, he does not
allege an actual injury. See Adegbuji v. Middlesex County, 169 F.
App’x 677, at *2 (3rd Cir. 2006)(plaintiff failed to allege actual
injury where he admitted that he received continuances and no legal
claims were dismissed.)
17
Plaintiff also contends the District Court in Maine made rulings
on his motions before he had time to reply, preventing him from having
a
fair
hearing.
The
facts
alleged
are
insufficient
to
show
Plaintiff’s inability to timely file a reply was the cause of a legal
ruling against him. Plaintiff’s right of access to the courts claim
will be dismissed without prejudice.
2.
First Amendment Retaliation Claims
Plaintiff alleges two acts of retaliation by Colina. First,
Colina filed a disciplinary report against him for not reporting to
work, although Colina knew he had a medical appointment that morning.
Second, Colina filed a disciplinary report against him for offering
a bribe. The alleged bribe was that Plaintiff would not file his
grievance against Colina, if Colina agreed not to reduce Plaintiff’s
work hours.
Plaintiff asserts that Colina’s two disciplinary reports
against him resulted in “negative notations” in his record that could
have resulted in serious sanctions. The disciplinary reports were
written
in
response
to
Plaintiff
filing
BP-8
administrative
grievances against Colina.
The
elements
of
a
retaliation
claim
include
(1)
constitutionally protected conduct, (2) an adverse action by prison
officials “‘sufficient to deter a person of ordinary firmness from
18
exercising his [constitutional] rights,’” and (3) “a causal link
between the exercise of his constitutional rights and the adverse
action taken against him.” Mitchell v. Horn, 318 F.3d 523, 530 (3d
Cir. 2003)(quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001)(quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.
2000)(alteration in original). “To establish the requisite causal
connection a plaintiff usually must prove either (1) an unusually
suggestive temporal proximity between the protected activity and the
allegedly retaliatory action, or (2) a pattern of antagonism coupled
with timing to establish a causal link.” Lauren W. ex rel. Jean W.
v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Krouse v.
American Sterilizer Co., 126 F.3d 494, 503–04 (3d Cir. 1997); Woodson
v. Scott Paper Co., 109 F.3d 913, 920–21 (3d Cir. 1997)).
Filing a grievance in prison is constitutionally protected
conduct. See Mitchell, 318 F.3d at 530 (citing Babcock v. White, 102
F.3d 267, 275–76 (7th Cir. 1996)(prisoner could survive summary
judgment on his claim that prison officials retaliated against him
for “use of the ‘inmate grievance system’ and previous lawsuits”).
Filing a prison disciplinary action against a prisoner in retaliation
for filing a grievance is an adverse action sufficient to deter a
person of ordinary firmness from engaging in the protected activity
19
when the possible sanctions are more than de minimus. Watson v. Rozum,
--F.3d--, 2016 WL 4435624, at *3 (3d Cir. Aug. 23, 2016).
Plaintiff did not identify the grievance he filed against Colina
in the Fall of 2015, which allegedly caused Colina to retaliate by
filing a disciplinary infraction against Plaintiff for failing to
report to work on November 10, 2015. Thus, Plaintiff has not pled
sufficient
facts
to
suggest
an
unusually
suggestive
temporal
proximity between his filing an unidentified grievance against
Colina and Colina filing a disciplinary infraction against him.
Therefore, this claim will be denied without prejudice.
Plaintiff’s second retaliation claim alleges a close temporal
proximity between his filing a BP-8 against Colina for reducing his
work hours on December 2, 2015, and Colina filing a disciplinary
infraction against him the same day. This claim may proceed past
screening against Colina. Apart from his allegation that Burns
co-signed the infraction report, which is insufficient to state a
retaliation claim against Burns, Plaintiff has not alleged how any
other defendant was personally involved in retaliation, only that
plaintiff made all of the defendants aware of his grievances.
Therefore, the supervisory claims will be dismissed.
3.
Equal Protection Claims
20
Plaintiff alleges “[o]ther inmates were on the job for the same
hours as the Plaintiff but were paid more hours amounti[ng] to as
much as more than 100% greater than the Plaintiff.” He explains that
he was docked as much as one-hour of work per day for receiving
medications, while other inmates were not docked to this extent. He
concludes Colina and Burns discriminated against him by paying him
less than other similarly situated inmates employed in Food Services
#10, and there was no rational basis for deducting as much as 10 hours
weekly from Plaintiff when the same was not done to similarly situated
inmates.
To allege an equal protection claim under the “class of one”
theory, “a plaintiff must allege that (1) the defendant treated him
differently from others similarly situated, (2) the defendant did
so intentionally, and (3) there was no rational basis for the
difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225,
239 (3d Cir. 2006). Plaintiff’s allegation that similarly situated
inmates’ pay intentionally was not docked to the same extent as his,
which the Court accepts as true at this stage of the litigation, is
sufficient to state an equal protection claim under a “class of one”
theory. This claim may proceed against Colina and Burns. Plaintiff
has not sufficiently alleged how any other defendant was personally
involved in an equal protection violation, apart from their knowledge
21
of his grievances, and the supervisory liability claims will be
dismissed.
4.
Eighth Amendment Claims1
Bivens actions have been extended to Eighth Amendment claims
of prisoners. Carlson, 446 U.S. at 23. The Eighth Amendment’s
proscription
against
cruel
and
unusual
punishment
prohibits
compelling an inmate “to perform physical labor which was beyond his
strength, endangered his life or health, or caused undue pain.”
Johnson v. Townsend, 314 F. App’x 436, 440-41 (3d Cir. 2008). In cases
involving inmate health or safety, the relevant state of mind is
deliberate indifference to inmate health or safety. Farmer v.
Brennan, 511 U.S. 825, 834 (1994).
Supervisors may be liable for their subordinates’ Eighth
Amendment violation “if it is shown that they, ‘with deliberate
indifference to the consequences, established and maintained a
policy,
practice
or
custom
which
directly
caused
[the]
constitutional harm.’” Barkes v. First Correctional Medical, Inc.,
766 F.3d 307, 316 (3d Cir. 2014) reversed on other grounds by Taylor
v. Barkes, 135 S.Ct. 2042 (2015)(quoting A.M. ex rel. J.M.K. v.
Luzerne County Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.
1
The Court notes Plaintiff made allegations against Dr. Sood that
seem to imply deliberate indifference to evaluating and treating
Plaintiff’s spinal injuries, but Plaintiff has not named Dr. Sood
as a defendant in this action.
22
2004)(quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720,
725 (3d Cir. 1989)). Additionally, “a supervisor may be personally
liable under § 1983 if he or she participated in violating the
plaintiff's rights, directed others to violate them, or, as the
person
in
charge,
had
knowledge
of
and
acquiesced”
in
the
subordinate's unconstitutional conduct. Id. (citing Baker v. Monroe
Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995)) There is no liability
where
the
defendant’s
only
involvement
in
the
alleged
unconstitutional conduct is responding to an administrative remedy
request. See Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir.
2006)(alleged inappropriate response to later-filed grievances
about medical treatment do not establish personal involvement in the
treatment itself).
Plaintiff asserts Colina compelled him to perform work that was
prohibited by the work limitations recommended by the FCI Fort Dix
medical department, including bending and lifting. This exacerbated
pain in his spine. Plaintiff’s Eighth Amendment claim against Colina
may proceed.
Plaintiff
alleges
all
defendants
were
advised
of
his
disabilities and that he should not be compelled to work, and they
failed to intervene on his behalf. There is no liability where the
defendant’s only involvement in an Eighth Amendment deliberate
23
indifference claim is responding to a later-filed grievance. Brooks,
167 F. App’x at 925. Plaintiff has failed to allege personal
involvement
to
support
supervisory
liability
claims
against
Defendants Malloy, Robinson, Mason, Hazelwood and Hollingsworth for
failure to intervene when he complained that Colina forced him to
perform work beyond his medical restrictions.
Plaintiff
asserts
Wilkes,
who
is
the
assistant
medical
director, who was aware of Plaintiff’s claim that he was being forced
to work beyond his medical restrictions, failed to obtain Plaintiff’s
medical records “for many months,” refused to view Plaintiff’s MRI
reports, and refused to review the Social Security Administration’s
ruling on his disability based on spinal injuries. These allegations
are sufficient to allege Wilkes’ personal involvement in forcing
Plaintiff
to
perform
work
beyond
his
medical
restrictions.
Plaintiff’s Eighth Amendment claim against Wilkes may proceed.
Plaintiff alleges Officer Kwartin was in charge of job changes
in the West Compound of F.C.I. Fort Dix where Plaintiff worked, and
he failed to authorize a job change for Plaintiff after all defendants
were advised of Plaintiff’s disability and that he should not be
compelled to perform work exceeding his medical restrictions.
Therefore, Plaintiff has alleged sufficient facts to establish
Kwartin’s personal involvement in an Eighth Amendment violation.
24
Plaintiff claims Rehwinkle, who is his mental health treatment
provider, was deliberately indifferent to the exacerbation of his
panic disorder and PTSD. She failed to respond to his requests for
more frequent mental health treatment. Plaintiff alleges he suffered
unnecessarily because Rehwinkle delayed her recommendation to have
Plaintiff removed from his job assignment because it was detrimental
to his physical and mental health.
A prison official can be liable under 42 U.S.C. § 1983 for
deliberate indifference to an inmate’s serious medical needs, in
violation of the Eighth Amendment. Goodrich v. Clinton County Prison,
214 F. App’x 105, 110 (3d Cir. 2007). There are two components to
such a claim. Id. First, the medical need must be objectively
“sufficiently serious.” Id. (quoting Farmer, 511 U.S. at 834).
Second, the prison official must act with deliberate indifference,
which is established when “the official was aware of a substantial
risk of serious harm to the prisoner but disregarded that risk by
failing to take reasonable measures to abate it.” Id., (quoting
Farmer, 511 U.S. at 837).
A mental illness may constitute a serious medical need. Id.
(citing Inmates of the Allegheny County Jail v. Pierce, 612 F.2d 754,
763 (3d Cir. 1979)). Deliberate indifference may be shown where
“prison authorities deny reasonable requests for medical treatment
25
... and such denial exposes the inmate to undue suffering.” Id.
(quoting Monmouth County Correctional Institutional Inmates v.
Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)(quotation and citation
omitted)).
Plaintiff alleges that he has panic disorder and PTSD, for which
he is receiving treatment. Therefore, he has established a serious
medical need. Plaintiff further alleges his dispute with Colina
exacerbated his panic disorder and PTSD, but Rehwinkle did not
respond to his requests for more frequent treatment.
When Colina accused Plaintiff of offering a bribe:
Plaintiff’s PTSD and panic disorder became
exacerbated over the next few days bringing on
a decompensation upon the Plaintiff’s mental
state resulting in the Plaintiff seeking help
from the Psychologist/Correctional Officer
Defendant Rehwinkle. The Plaintiff’s illness of
PTSD and panic disorder took control of his
mental capacity in a debilitating manner and
causing the Plaintiff to experience both
physical and emotion[al] pain and distress.
(Am. Compl., ¶30.)
Based on Plaintiff’s claim that Rehwinkle ignored Plaintiff’s
requests for more frequent treatment upon exacerbation of his mental
illness, and his claim that Rehwinkle caused him undue suffering by
delaying a recommendation that Plaintiff be removed from his job
assignment, he has pled sufficient facts, which accepted as true,
support his allegation of deliberate indifference to a serious mental
26
health need. Thus, the Eighth Amendment claim against Rehwinkle may
proceed.
5. Due Process Claim
Plaintiff alleges Colina violated his constitutional rights by
violating BOP Program Statement 1315.07I. The Fifth Amendment
provides that no person shall be deprived of life, liberty, or
property, without due process of law. “To prevail on a procedural
due process claim, a litigant must show (1) that the state deprived
him of a protected interest in life, liberty, or property and (2)
that the deprivation occurred without due process of law.” Burns v.
PA Dept. of Correction, 544 F.3d 279 (3rd Cir. 2008)(citing Ky. Dep't
of Corr. v. Thompson, 490 U.S. 454, 460 (1989); Reynolds v. Wagner,
128 F.3d 166, 179 (3d Cir. 1997).
A liberty interest in a prison condition can
arise in two ways. It can arise from the Due
Process Clause itself or from laws regulating
the treatment of prisoners which use language
of a mandatory character, such as the words
“shall,” “will” or “must,” to restrict the
freedom of prison authorities to make such
decisions.
James v. Quinlan, 866 F.2d 627, 629 (3rd Cir. 1989)(citing Hewitt
v. Helms, 459 U.S. 460, 466 & 469–72 (1983). No protectible liberty
interest
is
created
by
a
regulation
which
accords
officials
“unfettered discretion.” Connecticut Board of Pardons v. Dumschat,
452 U.S. 458, 465-66 (1981).
27
Plaintiff alleges Colina violated Program Statement 1315.07I
by not allowing him time off work to meet court-mandated legal
deadlines. Program Statement 1315.07I(5) provides in relevant part:
In cases where an inmate can demonstrate a need
to comply with an imminent court deadline, the
Associate Warden responsible for Unit Teams may
authorize use of the law library during work
hours. Inmates will submit their request
directly to the appropriate Associate Warden.
This submission must include proof of the
imminent court deadline and indicate why the
legal work cannot be accomplished during
leisure time.
(Am. Compl., ECF No. 5-1, Ex. A.)
This Program Statement allows the Associate Warden unfettered
discretion in authorizing use of the law library during a prisoner’s
work hours. Therefore, this Program Statement does not create a
protectable liberty interest that entitles Plaintiff to procedural
due process. Plaintiff’s due process claim based on Program Statement
1315.07I will be dismissed with prejudice.2
G.
Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”) subjects the United States
to liability for the tortious conduct of federal government employees
2
Although Plaintiff alleges Defendants violated other Program
Statements and BOP regulations, he has not alleged that these
violations denied him a protected liberty or property interest
without due process. The Court assumes Plaintiff alleges violation
of these policies and regulations in support of his FTCA claim.
28
occurring within the scope of employment. 28 U.S.C. §§ 1346(b), 2671
et seq. Plaintiff alleges he exhausted his administrative remedies
under the Federal Tort Claims Act (“FTCA”), as is required before
this Court can exercise jurisdiction over his claims. The Court will
allow Plaintiff’s claims under the Federal Tort Claims Act to
proceed.
III. CONCLUSION
Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), for the
reasons discussed above, the Court will grant Plaintiff’s IFP
application and dismiss, with prejudice because amendment of these
claims is futile, Plaintiff’s Title VII retaliation claims under 42
U.S.C. § 2000e-3, discrimination claims under 42 U.S.C. § 1981a, ADA
claims under 42 U.S.C. § 12101, and Fifth Amendment due process claim.
The
Court
will
dismiss
without
prejudice
Plaintiff's
discrimination claim under 42 U.S.C. § 1981, supervisory claims under
Bivens against Malloy, Robinson, Mason, Hazelwood and Hollingsworth;
First Amendment right of access to courts claim, and First Amendment
retaliation claim based on a disciplinary infraction for failing to
report to work.
Finally, the Court will allow the following claims to proceed
past screening: FTCA claim, First Amendment retaliation claim based
on a disciplinary infraction for offering a bribe; “Class of one”
29
equal
protection
claim
against
Colina
and
Burns
for
docking
Plaintiff’s hours to a greater extent than similarly situated
inmates; Plaintiff’s Eighth Amendment claims against Colina, Wilkes
and Kwartin for compelling him to perform work beyond the medical
restrictions given by the FCI Fort Dix medical department; and
Plaintiff’s Eighth Amendment claims against Rehwinkle for deliberate
indifference to his serious medical needs. An appropriate Order
follows.
DATED: October 20, 2016
s/RENÉE MARIE BUMB__________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
30
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