EVRON v. ORTIZ et al
Filing
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OPINION. Signed by Judge Robert B. Kugler on 8/23/2018. (rtm, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MICHAEL EVRON,
Plaintiff,
v.
DAVID ORTIZ, et al.,
Defendants.
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Civ. No. 17-1629 (RBK) (KMW)
OPINION
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODUCTION
Plaintiff Michael Evron seeks to bring a civil rights complaint pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against David
Ortiz, the Warden of FCI Fort Dix, and John Doe, Director of the Federal Bureau of Prisons.
(ECF No. 1). Plaintiff has also filed a motion for the appointment of pro bono counsel. At this
time, the Court must review the complaint, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A to
determine whether it should be dismissed as frivolous or malicious, for failure to state a claim
upon which relief may be granted, or because it seeks monetary relief from a defendant who is
immune from such relief. For the following reasons, the complaint is dismissed in part and
proceeded in part. In addition, Plaintiff’s request for the appointment of pro bono counsel is
denied.
II.
BACKGROUND
Plaintiff brings this civil rights action against Warden David Ortiz and the unnamed
Director of the Federal Bureau of Prisons (“BOP”) in their official capacities.1 The following
factual allegations are taken from the complaint and are accepted as true for purposes of this
screening.
Plaintiff is a convicted and sentenced federal prisoner confined at Fort Dix. (ECF No. 1
at 2). He explains that Fort Dix has an ongoing policy of collective punishment, wherein a single
inmate commits an infraction, and hundreds of uninvolved inmates are punished. (Id. at 5–7).
He raises several instances in which he was subjected to collective punishment. In September
2015, he explains that a single inmate whistled at a female staff member—as a result, over two
thousand prisoners were denied commissary for five weeks. (Id. at 6). In December of 2015, he
explains that an inmate was caught with a cell phone and then assaulted the housing officer who
found the phone. (Id.). Thereafter, Plaintiff’s unit, consisting of nearly 400 men, were denied
commissary, access to recreational facilities, religious services, and education, for an extended
period of time. (Id.). He also states that he was prohibited from attending his job as a tutor.
(Id.). He explains that religious services and continuing education classes are routinely denied to
inmates because of the collective punishment policy. (Id. at 7.). Plaintiff alleges that this policy
denies him and other inmates their constitutional right to due process, because he was punished
without any accusation of wrongdoing. (Id. at 7–8). Plaintiff seeks only injunctive relief, to
prohibit the BOP from punishing inmates without evidence of wrongdoing. (Id.at 6).
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A quick search by this Court reveals that the Acting Director of the BOP is Hugh J.
Hurwitz. The Clerk will be ordered to insert his name into the caption.
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III.
LEGAL STANDARD
Under the Prison Litigation Reform Act (“PLRA”), district courts are required to review
civil actions in which a prisoner proceeds in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B).
When reviewing such actions, the PLRA instructs courts to dismiss cases that are at any time
frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief
against a defendant who is immune. Id. “The legal standard for dismissing a complaint for failure
to state a claim pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) is the same as that for dismissing a
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).
Because Plaintiff is proceeding in forma pauperis, the applicable provisions of the PLRA
apply to the screening of his complaint. “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.
544, 555 (2007)). “A pleading that offers ‘labels or conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Id. In order to survive a dismissal for failure to state
a claim, a complaint must allege “sufficient factual matter to show that the claim is facially
plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (internal quotation
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.”
Iqbal, 556 U.S. at 678. A plaintiff seeking injunctive relief, however, need not prove personal
involvement by each defendant. See Parkell v. Danberg, 833 F.3d 313, 332 (3d Cir. 2016).
Furthermore, while pro se pleadings are liberally construed, they “still must allege sufficient facts
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in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d
Cir. 2013).
IV.
ANALYSIS
A. Sovereign Immunity
Plaintiff has sued both defendants in their official capacities. However, federal officials
sued in their official capacities are immune from suit under the doctrine of sovereign immunity.
See Lewal v. Ali, 289 F. App’x 515, 516 (3d Cir. 2008) (“An action against government officials
in their official capacities constitutes an action against the United States; and Bivens claims
against the United States are barred by sovereign immunity, absent an explicit waiver.”) (citing
FDIC v. Meyer, 510 U.S. 471, 483 (1994)); see also Webb v. Desan, 250 F. App’x 468, 470 (3d
Cir. 2007) (affirming the dismissal of a Bivens claim against the United States, BOP, and seven
named individuals in their official capacities). Because defendants are both agents of federal
entities, a Bivens action cannot be maintained against them in their official capacities, and thus
the complaint is barred by sovereign immunity. Nevertheless, construing the complaint liberally,
the Court will assume Plaintiff intended to sue the defendants both in their official and individual
capacities.
B. Loss of Prison Rights
While Plaintiff presents a compelling argument, the Court must assess if the rights denied
him are, in fact, constitutionally protected rights, or merely privileges that the BOP may deny
him.
1. Commissary
Plaintiff states that he has been routinely denied access to the commissary, as a result of
the BOP’s policy of collective punishment. This argument fails to state a claim, because inmates
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do not have a constitutionally protected right in accessing the commissary: “[t]he loss of canteen
or commissary purchasing privileges does not violate the Constitution.” Planker v. Christie, No.
13-4464, 2015 WL 268847, at *22 (D.N.J. Jan. 21, 2015) (citing Pelzer v. Shea, 470 F. App’x 62
(3d Cir. 2012); Tuozzo v. Shartle, No. 13-4897, 2014 WL 806450, at *2 n.4 (D.N.J. Feb. 27,
2014) (“claims based on loss of privileges are not cognizable even in Bivens review.”) (citing
Pelzer, 470 F. App’x 62); Troy v. Kuhlmann, 1999 WL 825622, * 12 (S.D.N.Y. 1999) (“denial
of privileges such as telephone, package, and commissary privileges do not represent the type of
deprivation which could reasonably be viewed as imposing an atypical and significant hardship
on the inmate”).
While an inmate, under the Eighth Amendment, does have a constitutional right to be
provided basic necessities, see Farmer v. Brennan, 511 U.S. 825, 832 (1994), Plaintiff has not
alleged that his loss of commissary privileges has denied him basic necessities. Accordingly,
this claim is dismissed without prejudice.
2. Access to Recreational Facilities
Plaintiff next contends that the BOP’s collective punishment scheme has denied him and
other inmates access to recreational facilities. (ECF No. 1 at 6). “[T]he denial of exercise and
recreation may result in a constitutional violation ”. Millhouse v. Arbasak, 373 F. App’x 135,
138 (3d Cir. 2010); Peterkin v. Jeffes, 855 F.2d 1021, 1031 (3d Cir. 1988) (“[t]here is no
question that meaningful recreation ‘is extremely important to the psychological and physical
well-being of the inmates.’”) (citing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)).
Nevertheless, the Third Circuit has never determined, in a precedential opinion, when the denial
of recreational activities amounts to a constitutional deprivation. Instead, the Third Circuit has
explained that other Courts of Appeals “consider the totality of the circumstances . . . [such as]
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the length of the deprivation, the availability of recreation within the cell, and whether the inmate
suffered any ill health effects as a result of the deprivation.” Barndt v. Wenerowicz, 698 F.
App’x 673, 677 (3d Cir. 2017) (citations omitted). Thus, in determining if an inmate’s rights
have been violated by the denial of recreation, courts assess the length of the recreational
deprivation and the extent of physical harm to the inmate. See id. at 677 (3d Cir. 2017) (“the
temporary denial of out of cell exercise for twenty-eight days was not a substantial deprivation”
of the inmate’s Eighth Amendment rights.); Millhouse v. Arbasak, 373 F. App’x 135, 138 (3d
Cir. 2010) (denial of recreation for one day “is insufficiently serious to implicate the Eighth
Amendment”) (citation omitted); Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir. 2001) (denial of
yard privileges for no more than ninety days not cruel and unusual punishment); French v.
Owens, 777 F.2d 1250, 1255 (7th Cir. 1985) (finding deprivation “[w]here movement is denied
and muscles are allowed to atrophy, [and] the health of the individual is threatened”.)
Here, while Plaintiff has not alleged facts establishing that the recreational deprivation
has caused him tangible physical harm, he has indicated that the deprivation lasted six weeks.
Because the law is unsettled in this area, the Court will permit this claim to proceed.2
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The Court is mindful of the recent Supreme Court decision in Ziglar v. Abbasi, 137 S. Ct.
1843 (2017), counseling against the creation of new Bivens actions. The Court notes, however,
that Plaintiff is seeking only injunctive relief as opposed to money damages. The Supreme Court
in Ziglar appears to have been more concerned with the former: “the question with respect to the
Bivens claims is whether to allow an action for money damages in the absence of congressional
authorization.” Id. at 869 (emphasis added). The Court reserves the right to address the
applicability of Ziglar at a later stage, should the need arise.
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3. Religious Services
Plaintiff states that the policy of collective punishment has, on occasion, deprived him of
the right to attend religious services. The Court construes Plaintiff’s complaint as raising a First
Amendment right to free exercise claim.
Under the First Amendment, “[t]he Free Exercise Clause of the First Amendment
prohibits prison officials from denying an inmate ‘a reasonable opportunity of pursuing his
faith.’” McCray v. Passaic Cty. Jail, No. 13-6975, 2013 WL 6199202, at *2 (D.N.J. Nov. 27,
2013) (citing Cruz v. Beto, 405 U.S. 319, 322, 322 n.2 (1972)). In order to establish a claim,
Plaintiff must raise sufficient allegations to show that the defendants’ actions impinged on his
constitutional rights and were not reasonably related to legitimate penological interests.
Williams v. Morton, 343 F.3d 212, 216 (3d Cir. 2003). To make that determination, the Third
Circuit relies on the four-factor test established by the Supreme Court in Turner v. Safley: (1)
whether there is a valid, rational connection between the prison regulation and the legitimate
governmental interest put forward to justify it; (2) whether there are alternative means of
exercising the right that remain open to prison inmates; (3) the impact accommodation of the
asserted constitutional right will have on guards and other inmates, and on the allocation of
prison resources generally; and (4) the absence of ready alternatives. 482 U.S. 78, 89-90 (1983).
Here, Plaintiff alleges that as a result of actions taken by other inmates, he is deprived of
the right to attend religious services. While Plaintiff provides scant facts to support his
argument, the Court finds the allegations sufficient to allow this claim to proceed at this time.3
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Once again, the Court will not address the applicability of Ziglar at this time.
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4. Educational Classes and Tutoring
Plaintiff argues that he has been deprived of the right to attend educational classes, as the
result of infractions committed by other inmates. (ECF No. 1 at 6). He also states that he has
not been allowed to attend his job as a tutor. (Id.) Prisoners, however, have no constitutional
right to an education or prison job. See Abraham v. Delaware Dep’t of Corr., 331 F. App’x 929,
931 (3d Cir. 2009) )(“Prisoners have no constitutional right to rehabilitation, education, or jobs”)
(citing Rhodes v. Chapman, 452 U.S. 337, 348 (1981)); Bullock v. McGinnis, 5 F. App’x 340,
342 (6th Cir. 2001) (same); Knight v. State of Ariz., 39 F.3d 1187 (9th Cir. 1994) (“Inmates have
no constitutional right to education or rehabilitation.”); Mason v. Educ. Dep’t, 2008 U.S. Dist.
LEXIS 42183 (D. Del. May 28, 2008) (“[Plaintiff] contends he is being denied education and
schooling. Unfortunately for [Plaintiff], prisoners have no constitutional right to an education.”)
Because there is no constitutionally protected right to an education or a job in prison, this
allegation fails to state a claim upon which relief may be granted. Accordingly, this claim will
be dismissed without prejudice.
C. Motion for Appointment of Counsel
Plaintiff has also requested the appointment of pro bono counsel. (See ECF No. 1-1 at 3).
A district court may appoint counsel to represent an indigent civil litigant under 28 U.S.C. §
1915(d), though such litigants do not have a right to appointed counsel. See Tabron v. Grace, 6
F.3d 147, 153 (3d Cir. 1993). In evaluating a motion seeking appointment of counsel, the court
must preliminarily determine whether the plaintiff’s claim has arguable merit. Id. at 155. If the
court finds that the plaintiff’s claim has merit, the court should be guided by the following nonexclusive factors:
1) The plaintiff's ability to present his or her own case;
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2) The complexity of the legal issues;
3) The degree to which factual investigation will be necessary and
the ability of the plaintiff to pursue such investigation;
4) The amount a case is likely to turn on credibility determinations;
5) Whether the case will require the testimony of expert witnesses;
and
6) Whether the plaintiff can attain and afford counsel on his own
behalf.
See id. at 155–57; see also Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002). To the
extent Plaintiff’s claim may be meritorious, Plaintiff has not demonstrated at this stage of the
proceeding that pro bono counsel is warranted under the Tabron factors. Thus far, there is nothing
to indicate that Plaintiff is unable to present his own case. He has properly filed an application for
in forma pauperis status, and the instant pro bono motion. As well, his complaint cites relevant
constitutional concepts. Furthermore, the legal issues presented in the complaint are not overly
complex, and, at this early stage, it is not clear if expert testimony will be required, whether factual
investigation will be necessary, or the degree to which the case may turn on credibility
determinations.
The Court acknowledges that Plaintiff is of limited financial means and is unable to afford
his own counsel. Nevertheless, this fact alone is not enough to justify the appointment of counsel.
Plaintiff is permitted to renew his request to appoint pro bono counsel at a later time. In the event
he does so, the Court instructs Plaintiff to address the Tabron factors set forth above
V.
CONCLUSION
For the reasons set forth above, the Court will dismiss without prejudice Plaintiff’s § 1983
claims as they relate to the loss of commissary, jobs, and educational classes for failure to state a
claim upon which relief may be granted. Plaintiff’s § 1983 claims related to the denial of
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recreational facilities, and attendance at religious services may proceed. In addition, Plaintiff’s
motion for the appointment of pro bono counsel is denied without prejudice. An appropriate order
follows.
Dated: August 23, 2018
s/Robert B. Kugler_
ROBERT B. KUGLER
United States District Judge
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