BURKE v. SESSIONS et al
OPINION. Signed by Judge Renee Marie Bumb on 2/7/2018. (rtm, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT A. BURKE,
JEFF SESSIONS, et al.,
Civil Action No. 17-7870(RMB)
BUMB, District Judge
Plaintiff, Robert A. Burke (“Burke”), a prisoner incarcerated
in the Federal Correctional Institution in Fort Dix, New Jersey,
filed this civil rights complaint on October 4, 2017. (Compl., ECF
No. 1.) On November 21, 2017, Burke filed an amended complaint.
(Am. Compl., ECF No. 3.) Burke paid the Court’s filing fee for
this action on December 11, 2017.
28 U.S.C. § 1915A provides, in relevant part:
(a) Screening.--The court shall review, before
docketing, if feasible or, in any event, as
soon as practicable after docketing, a
complaint in a civil action in which a
prisoner seeks redress from a governmental
(b) Grounds for dismissal.--On review, the
court shall identify cognizable claims or
dismiss the complaint, or any portion of the
complaint, if the complaint-(1) is frivolous, malicious, or fails to
state a claim upon which relief may be
defendant who is immune from such relief.
Burke asserts jurisdiction under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
the Civil Rico statute, 18 U.S.C. §§ 1961 et seq. He names as
defendants U.S. Attorney General Jeff Sessions, Bureau of Prisons
(“BOP”) Director Mark S. Inch; BOP Northeast Regional Director
Director BOP Designation and Sentence Computation Center (“DSCC”)
Jose Santana; and John and Jane Does 1-20. (Am. Compl., ECF No.
Burke alleged the following facts in his amended complaint.
On September 4, 1998, Burke was arrested in London, England at the
request of the defendants, and held without bail or bond until
October 1 or 2, 2001, for a total of 1,123 days. (Id. at 13, ¶8.)
Burke was extradited to the United States on October 2, 2001. (Id.,
Burke exhausted his administrative remedies with the Bureau
of Prisons. (Am. Compl., ECF No. 3 at 14, ¶10.) Upon receiving
Burke’s administrative remedy requests 1 on forms BP-8 and BP-9,
Defendant Ortiz warned Burke not to pursue a BP-10 or BP-11 remedy.
(Id., ¶11.) Despite Ortiz’s warning, Burke filed a BP-10 remedy
warning to prevent Burke from filing a BP-11 remedy request. (Id.,
¶12.) Burke filed a BP-11 remedy request, and it was denied by
Defendant Mark S. Lynch on August 12, 2017. (Id., ¶13.) Upon
lawsuit. (Id., ¶14.) Defendant Santana, Director of the BOP DSCC,
also denied Burke’s remedy request for 1,123 days of jail credit.
(Id. at 14-15, ¶15.) Defendant Sessions “was notified of this issue
& has intentionally failed to correct the  record.” (Id. at 15,
Sessions, Inch, Carvajal, Ortiz, Santana and others conspired to
prevent him from exercising his due process rights, and violated
his right to access the courts and freedom of speech by: (1)
denying his BP-8 and BP-9 remedy requests and threatening him not
to file a BP-10; (Am. Compl., ECF No. 3 at 15, ¶¶17, 18); and (2)
The BOP has established an administrative remedy program that
allows an inmate to seek formal review of an issue relating to any
aspect of his/her confinement. See 28 C.F.R. §§ 542.10-542.19. Use
of specific forms, BP-9 through BP-11, is required at each formal
stage of review. Id. §§ 542.14-15.
retaliating against him for exercising his right of access to the
courts or due process. (Id. at 16, ¶19.)
Unrelated to the above, Burke also alleged Defendants Ortiz,
Smith and Santana “allow[ed] me to live in a unhealthy environment
[sic] living conditions such as: Black Mold in showers; Asbestos;
Tainted Water; Aircraft exhaust poison; Noise pollution; among
other things[.]” (Id. at 5.)
For relief, Burke seeks a preliminary injunction granting him
1,123 days of jail credit. (Id. at 18, ¶¶24-26.) He also requests
a declaratory judgment that the defendants violated the Civil RICO
statute and the First, Fifth and Eighth Amendments of the United
States Constitution. (Id. at 23.) He further seeks compensatory
and punitive damages. (Id. at 23-34.)
Courts must liberally construe documents that are filed pro
se. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Here, Burke is a
prisoner who is seeking relief from a governmental employee.
Therefore, the Court is required to sua sponte dismiss any claim
that is frivolous or malicious; fails to state a claim upon which
relief may be granted; or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b). The standard
for assessing whether a complaint fails to state a claim upon which
relief may be granted under § 1915(A)(b)(1) is identical to the
legal standard used for ruling on a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). Courteau v. U.S., 287 F.
App’x 159, 162 (3d Cir. 2008) (per curiam) (citing e.g. Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).
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. 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 the factual allegations in a
recitals of the elements of a cause of action, do not suffice to
state a claim.
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
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).
Miscalculation of Sentence Claim Must be Brought in a
Habeas Petition under 28 U.S.C. § 2241
The appropriate vehicle to challenge the BOP’s calculation of
a prisoner’s sentence is in a habeas petition under 28 U.S.C. §
2241. Eiland v. Warden Fort Dix FCI, 634 F. App’x 87, 89 (3d Cir.
2015); Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997). A
claim that the BOP miscalculated Burke’s sentence, if successful,
would result in his speedier release from prison. Thus, this claim
“lies at the core of habeas” and cannot be brought as a civil
rights action. Eiland, 634 F. App’x at 89 (quoting Wilkinson v.
Dotson, 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005)
(quoting Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827,
36 L.Ed.2d 439 (1973)).
Moreover, in his amended complaint, Burke stated he has
“[n]ever filed any previous lawsuit anywhere.” (Am. Compl., ECF
No. 3 at 3, ¶2a.) This is not true. 2 Burke filed two habeas
petitions under 28 U.S.C. § 2241, seeking jail credit for the time
he spent in confinement in London. See Burke v. Hollingsworth,
Civ. Action No. 16-1290(RMB), 2017 WL 1540388 (D.N.J.); Burke v.
Burke also filed a civil rights action against the prosecutor
involved in his extradition from the United Kingdom. Burke v.
MacArthur, Civ. Action NO. 15-6093(RMB), 2015 WL 5970725 (D.N.J.).
Lockett, 499 F. App’x 613, 614 (7th Cir. 2013). In both cases, the
court found Burke was not entitled to relief. Id.
Unless Burke has a new basis for his claim that he is entitled
to sentencing credit for the 1,123 days spent in the United Kingdom
awaiting extradition, his § 2241 petition would be subject to
dismissal pursuant to 28 U.S.C. § 2244(a). See Queen v. Miner, 530
F.3d 253, 255 (3d Cir. 2008) (per curiam) (holding that district
court, pursuant to 28 U.S.C. § 2244(a), properly dismissed § 2241
petition which raised issues already addressed in an unsuccessful
§ 2241 petition); accord Henderson v. Bledsoe, 396 F. App’x 906,
907 (3d Cir. 2010) (per curiam). 3
2244(a) by bringing his claims in a Bivens action. The Bivens claim
based on alleged miscalculation of Burke’s sentence is dismissed
with prejudice for failure to state a claim.
First Amendment Retaliation Claim
Plaintiff alleged the defendants retaliated against him for
filing administrative remedy requests and this lawsuit. He alleged
28 U.S.C. § 2244(a) provides:
No circuit or district judge shall be required
to entertain an application for a writ of
habeas corpus to inquire into the detention of
a person pursuant to a judgment of a court of
the United States if it appears that the
legality of such detention has been determined
by a judge or court of the United States on a
prior application for a writ of habeas corpus,
except as provided in section 2255.
only that defendants warned or threatened him to stop filing
administrative remedy requests. To state a retaliation claim, a
constitutionally protected; (2) he suffered an adverse action at
protected conduct was a substantial or motivating factor in the
decision” to retaliate against him. Watson v. Rozum, 834 F.3d 417,
422 (3d Cir. 2016) (quoting Rauser v. Horn, 241 F.3d 330, 333-34
(2001)). A prisoner satisfies the adverse action requirement “by
demonstrating that the action ‘was sufficient to deter a person of
ordinary firmness from exercising his [constitutional] rights.’”
Rauser, 241 F.3d at 333 (quoting Allah v. Seiverling, 229 F.3d
220, 225 (3d Cir. 2000)).
Burke alleged only that defendants warned or threatened him
against taking the next step in the administrative remedy program
and filing a civil rights suit. He did not describe the nature of
the warning or threat made by each individual defendant. Burke’s
allegations are too vague to establish that each defendant took an
adverse action against him that was sufficient to deter a person
of ordinary firmness from exercising his right to seek redress for
his grievances. Therefore, the retaliation claims are dismissed
without prejudice. 4
The Court notes that if Plaintiff amends his complaint to state
a viable First Amendment retaliation claim, the claim would be
Fifth and Eighth Amendment Claims
Jail credit claims
Burke’s Fifth Amendment 5 and Eighth Amendment claims for
damages based on his confinement for 1,123 days for which he
believes he should have been given jail credit are barred by Heck
v. Humphrey, 512 U.S. 477 (1994). “[A] § 1983 claim [or Bivens] …
is barred, regardless of the target of the lawsuit, if success in
the § 1983 action [or Bivens] ‘would necessarily demonstrate the
invalidity of confinement or its duration.’” Royal v. Durison, 254
F. App’x 163, 165 (3d Cir. 2007) (quoting Wilkinson v. Dotson, 544
U.S. 74, 82 (2005) (alterations added). Before a plaintiff may
assert such a claim for damages he must first “prove that the
conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus...” Heck, 512 U.S. at
486-87. Therefore, the Fifth and Eighth Amendment Bivens claims
are dismissed without prejudice as Heck-barred.
subject to the “special factors analysis” set forth by the Supreme
Court in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). Ziglar requires
district courts to determine whether an implied cause of action
should be created under Bivens to permit a claim in a new Bivens
context, where the Supreme Court has only recognized a Bivens cause
of action in three prior cases.
The Court construes Burke’s Fifth Amendment claim as
substantive due process claim for loss of liberty. See e.g.
Conditions of confinement claim
conditions of confinement claim based on exposure to black mold,
asbestos, tainted water, aircraft exhaust, and noise pollution.
While such a claim may potentially be brought in a Bivens action, 6
Burke failed to allege sufficient facts to state a claim.
confinement claim, a plaintiff must allege facts indicating (1)
“an ‘objectively, sufficiently serious’ deprivation and (2) that
the officials being sued had ‘sufficiently culpable states of
mind.’” Ridgeway v. Guyton, 663 F. App’x 203, 205 (3d Cir. 2016)
(quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994)). The “state of mind” required is that of
deliberate indifference by a prison official. Parkell v. Danberg,
833 F.3d 313, 335 (3d Cir. 2016)
The first prong is met by alleging conditions that deprive
the prisoner of “the minimum of civilized life's basic necessities—
food, water, shelter.” Id. (citing Tillery v. Owens, 907 F.2d 418,
426–27 (3d Cir. 1990)). In determining whether a prisoner was
deprived of life’s basic necessities, courts often look at the
See Ziglar, supra note 4.
length of time a prisoner was subjected to unhealthy or unsanitary
conditions. See Tillery, 907 F.2d at 427 (citing examples.)
Here, Burke has not sufficiently described the conditions of
confinement to establish the first prong of the Eighth Amendment
claim, an objectively, sufficiently serious deprivation. The claim
is deficient because he has not described the length or degree of
his exposure to the alleged unhealthy conditions or the effect of
the conditions on him.
Furthermore, the only allegation as to the defendants’ state
of mind is that they “allowed” Burke to live in such conditions.
This is insufficient to state a claim. “A prison official is
deliberately indifferent if the official ‘knows that inmates face
a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.’” Parkell, 833
F.3d at 335 (quoting Chavarriaga v. New Jersey Dept. of Corr., 806
F.3d 210, 229 (3d Cir. 2015) (quotation omitted)). Deliberate
indifference may be demonstrated “‘by showing that the risk of
harm was longstanding, pervasive, well-documented, or expressly
noted by prison officials in the past such that the defendants
must have known about the risk.’” Id. (quoting Betts v. New Castle
Youth Dev. Ctr., 621 F.3d 249, 259 (3d Cir. 2010) (quotation marks
omitted in original)). The plaintiff must show that the officials
were aware of facts from which the inference could be drawn that
a substantial risk of harm exists, and that they also drew the
The Eighth Amendment claim is dismissed without prejudice
because Burke has not alleged sufficient facts to state a claim
for relief. 7 Burke should also be aware that 42 U.S.C. § 1997e
provides “[n]o action shall be brought with respect to prison
conditions under … any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”
Civil RICO claim
“Under the RICO, a person who is injured by reason of a
criminal RICO violation may bring a civil action against the RICO
Smith v. Hildebrand, 244 F. App’x 288, 290 (11th Cir.
2007) (citing 18 U.S.C. § 1964). “It is well-settled that the
alleged injury must arise from an unlawful act specified in 18
U.S.C. § 1961(1).” (Id.) (citing Beck v. Prupis, 529 U.S. 494,
504-06, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000) (“we conclude that
an injury caused by an overt act that is not an act of racketeering
or otherwise wrongful under RICO, … is not sufficient to give rise
to a cause of action under § 1964(c) for a violation of § 1962(d)”);
but see Smith v. Berg, 247 F.3d 532, 538 (3d Cir. 2001) (“a
plaintiff could, through a § 1964(c) suit for violation of 1962(d),
This claim is also subject to the Ziglar analysis. See supra note
sue co-conspirators who might not themselves have violated one of
the substantive provisions of § 1962” (quoting Beck, 529 U.S. at
The racketeering activity alleged by Plaintiff is warning or
retaliating against him in a manner he did not describe. These are
not unlawful acts specified as racketeering activity under 18
activity by any co-conspirator, the Civil RICO conspiracy claim is
dismissed without prejudice for failure to state a claim under 28
U.S.C. § 1915A. See Gaskins v. Santorum, 324 F. App’x 147, 149 (3d
Cir. 2009) (affirming dismissal of Civil RICO claim pursuant to §
1915(e)(2)(B), where claim did not contain “elements of a cause of
action nor facts that identify proscribed conduct.”)
Within his amended complaint, Burke alleged that he has
established the elements necessary to grant preliminary injunctive
relief on his claims for jail credit. (Am. Compl., ECF No. 3, ¶¶2426.) Because the amended complaint is dismissed for failure to
state a claim, the request for preliminary injunctive relief is
On January 24, 2018, Burke filed a motion requesting the Clerk
to issue summons in this matter. (Mot. for Summons, ECF No. 6).
This motion is also moot because this action is dismissed pursuant
to 28 U.S.C. § 1915A, which requires the Court to review the
complaint if it fails to state a claim upon which relief may be
For the reasons discussed above, the Bivens claim based on
prejudice for failure to state a claim; and the remainder of the
amended complaint is dismissed without prejudice for failure to
state a claim upon which relief may be granted, pursuant to 28
U.S.C. § 1915A(b)(1).
An appropriate Order follows.
Dated: February 7, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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