SHORTER v. UNITED STATES OF AMERICA et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 4/9/18. (jbk, )

NOT FOR PUBLICATION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

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Plaintiff
v.
UNITED STATES OF AMERICA,
et al.,
Defendants

CIV. NO. 17-8911(RMB)

OPINION

BUMB, DISTRICT JUDGE
Plaintiff Christopher Shorter, a prisoner presently confined
at the Federal Correctional Institution in Miami, Florida (“FCIMiami”) brings this civil rights complaint under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), and the Federal Tort Claims Act (“FTCA”). (Compl., ECF No.
1.) Plaintiff filed an application to proceed in forma pauperis
(“IFP” ECF No. 1-2), which the Court denies without prejudice
because Plaintiff did not submit a “certified copy of the trust
fund

account

statement

(or

institutional

equivalent)

for

the

prisoner for the 6-month period immediately preceding the filing
of the complaint … obtained from the appropriate official of each
prison at which the prisoner is or was confined” as required by 28
U.S.C. § 1915(a)(2). The Court will administratively terminate

this matter, but Plaintiff will be permitted to reopen if she
timely submits her certified trust account statement.1
When a prisoner is permitted to proceed without payment of
the filing fee, 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) require
courts to review a complaint in a civil action and sua sponte
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.
For the reasons discussed below, Plaintiff’s complaint fails to
state a Bivens claim but sufficiently alleges an FTCA claim against
the United States.2
I.

Sua Sponte Dismissal
Courts must liberally construe pleadings that are filed pro

se. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Thus, “a pro se complaint,
however

inartfully

standards

than

pleaded,

formal

must

pleadings

be

held

to

drafted

by

‘less

stringent

lawyers.’”

Id.

1

Plaintiff is transgender and therefore requests that the court
use the feminine pronoun to refer to her. (Declaration, ECF No. 13.)
2

This Court’s conclusive screening of Plaintiff’s claims is
reserved until she obtains in forma pauperis status. See Izquierdo
v. New Jersey, 532 F. App’x 71, 72-73 (3d Cir. July 25, 2013)
(district court may decide whether to dismiss the complaint under
28 U.S.C. § 1915(e)(2) after leave to proceed IFP is granted).
2

(internal quotation marks omitted). “Court personnel reviewing pro
se pleadings are charged with the responsibility of deciphering
why the submission was filed, what the litigant is seeking, and
what claims she may be making.” See Higgs v. Atty. Gen. of the
U.S., 655 F.3d 333, 339-40 (3d Cir. 2011) (quoting Jonathan D.
Rosenbloom, Exploring Methods to Improve Management and Fairness
in Pro Se Cases: A Study of the Pro Se Docket in the Southern
District of New York, 30 Fordham Urb. L.J. 305, 308 (2002)).
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.) 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
3

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).
II.

DISCUSSSION
A.

The Complaint

Plaintiff alleged the following facts in her complaint, which
are accepted as true for purposes of this screening. Plaintiff, a
transgender inmate who had been diagnosed with gender dysphoria,
arrived at FCI-Fort Dix West Unit, in Fort Dix, New Jersey, on
June 16, 2015. (Compl., ECF No. 1 at 10.) All Defendants were aware
Plaintiff was coming to FCI Fort Dix as a transgender inmate, and
her first housing assignment was to a twelve-man room. (Id.) At
her intake on June 22, 2015, Plaintiff was designated “at risk”
for sexual victimization, and all Defendants were notified. (Id.)
On July 7, 2015, Plaintiff met with Unit Manager Byrd and
Counselor Hamel about her fear of being unsafe housed with eleven
men. (Id.) Byrd told Plaintiff the warden had directed him to talk
to Plaintiff about her concerns. (Id.) Plaintiff, pointing to
4

Bureau of Prison (“BOP”) Program Statements concerning transgender
inmates, requested to be housed in a two-man cell with a screened
cellmate. (Compl., ECF No. 1 at 10.) Plaintiff had been sexually
victimized by staff at another institution before coming to FCI
Fort Dix. (Id.) Counselor Hamel objected to Plaintiff being housed
in a two-man cell because she had just arrived at Fort Dix. (Id.)
Plaintiff was moved into a two-man cell on July 10, 2015, but
the cell was the last cell on the hallway of the second floor,
farthest from the officers’ station, which was on the first floor.
(Id. at 11.) In Psychology Services on July 13, 2015, Plaintiff
reported her concern over comments inmates had been making about
her nipples, and her discomfort with being housed at FCI Fort Dix.
(Id.)
On August 11, 2015, Counselor Hamel assigned Plaintiff a new
cellmate who was a sex offender. (Id.) Plaintiff wrote a grievance
to Warden Hollingsworth on August 15, 2015, complaining that Hamel
was not properly trained on housing a transgender inmate. (Id. at
11.) On August 18, 2015, Plaintiff submitted a transfer request to
Unit Manager Byrd, who distributed it to Associate Warden Dynan,
Warden J. Hollingsworth, Dr. Rehwhinkle, Dr. Marantz and Associate
Warden Hazelwood. (Id.) In Psychology Services that day, Plaintiff

5

expressed her concern about being at risk for sexual victimization.
(Compl., ECF No. 1 at 11.)
Plaintiff met with Dr. Rehwhinkle on August 21, 2015. (Id.)
Rehwhinkle told Plaintiff that Dr. Marantz agreed with her transfer
request, and the request was in the process for approval. (Id.)
Plaintiff was informed she would not be assigned another cellmate
as long as she was housed at FCI Fort Dix. (Id.) Plaintiff remained
in a cell by herself, but it was the farthest cell from the
officers’ station. (Id.) The defendants refused to move Plaintiff
closer to the officers’ station, and would not allow her to put a
makeshift lock on her cell door. (Id. at 12-13.) The Court infers
from Plaintiff’s allegations that she was housed in a unit that
did not have locks on the cell doors.
On October 14, 2015, at 1:45 a.m., Plaintiff awoke in her
cell with a sharp object cutting her neck. (Id. at 12.) Inmate
Michael

Garcia

sexually

assaulted

Plaintiff.

(Id.) 3 Although

Garcia was wearing a ski mask, Plaintiff knew who it was. (Id.)
Garcia cut Plaintiff seven times with a sharp object. (Id.) After

3

Plaintiff alleges the inmate who assaulted him “touched all over
my body, inserted his fingers and his tongue (oral sodomy) into my
anus. He cut me (7) times during the sexual assault, so physical,
DNA and forensic evidence was present on my body and possibly my
clothing that would have conclusively identified him as my
perpetrator.” (Compl., ECF No. 1 at 14, ¶6.) Plaintiff received a
tetanus shot upon his request. (Id. at 15, ¶7.)
6

the assault, Plaintiff ran down to the officers’ station and
reported the assault. (Compl., ECF No. 1 at 12.) Plaintiff alleges
DNA evidence was present on her body and possibly her clothing
after the assault. (Id. at 14.)
Plaintiff was only “half examined” by Dr. Carl Sceusa after
the

assault.

(Id.)

Dr.

Sceusa

did

not

perform

a

rape

kit

examination, collect DNA or do a forensic medical exam. (Id. at
12.) Lieutenant Bittner interviewed Plaintiff about the sexual
assault on October 21, 2015, a week after it occurred. (Id.) In
investigating

the

assault,

Lieutenant

Bittner

did

not

ask

Plaintiff what the perpetrator was wearing or attempt to retrieve
the clothing for forensic testing. (Id. at 14.) The officer who
took Plaintiff’s clothing after the assault threw the clothing
into a laundry bin with dirty clothes of other inmates. (Id. at
13.) Plaintiff was placed in involuntary protective custody in the
segregated housing unit. (Id.) The clothing was never collected as
evidence until after Plaintiff was housed in the SHU. (Id.)
Staff in Psychology Services completed a Diagnostic and Care
Level Formulation for Plaintiff the day after the assault. (Id. at
12.) On October 29, 2015, Plaintiff received a memo that Lieutenant
Bittner found the sexual assault allegations were unsubstantiated.

7

(Compl., ECF No. 1 at 12.) Plaintiff was transferred out of FCI
Fort Dix on November 2, 2015. (Id.)
Plaintiff contends that Defendants’ failure to protect her
and failure to properly investigate the sexual assault violated
her rights under the Fifth and Eighth Amendments. (Id. at 13.)
Plaintiff

named

the

following

as

defendants:

Warden

Jordan

Hollingsworth, Associate Warden Christine Dynan, Associate Warden
Robert Hazelwood, Chief of Psychology Dr. Marantz, Captain Pena,
Lieutenant Bittner, Counselor Hamel, Dr. Carl Sceusa, Unit Manager
Byrd, and John Doe PREA Compliance Manager. (Id. at 5-7.)
B.

Bivens Claims
1.

The

Eighth Amendment Failure to Protect

Eighth

Amendment’s

prohibition

on

cruel

and

unusual

punishment requires prison officials to take reasonable measures
“to

protect

prisoners

from

violence

at

the

hands

of

other

prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994)(internal
quotations omitted). To state a claim under the Eighth Amendment
against a prison official for failure to protect an inmate from
violence, an inmate must plead facts showing that (1) he was
incarcerated under conditions posing a substantial risk of serious
harm,

(2)

the

official

was

deliberately

indifferent

to

that

substantial risk to his health and safety, and (3) the official’s
8

deliberate indifference caused him harm. Bistrian v. Levi, 696
F.3d 352, 367 (3d Cir. 2012).
To

establish

the

subjective

standard

of

deliberate

indifference, “the prison official-defendant must actually have
known or been aware of the excessive risk to inmate safety.” Id.
(quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir.
2001)). Actual knowledge can be shown by circumstantial evidence
where (1) “‘a substantial risk of inmate attacks was longstanding,
pervasive, well-documented, or expressly noted by prison officials
in the past,’ and (2) where ‘circumstances suggest that the
defendant-official being sued had been exposed to information
concerning the risk and thus must have known about it.’” Counterman
v. Warren County Correctional Facility, 176 F. App’x 234, 238 (3d
Cir. 2006) (quoting Beers-Capitol, 256 F.3d at 131 (quoting Farmer,
511 U.S. at 837)). Inquiry into the risk of harm, as opposed to
the defendant’s knowledge of it, is objective. Id.
The facts alleged by Plaintiff in support of deliberate
indifference are that (1) Defendants knew she was a transgender
inmate who had been subject to sexual assault by staff in another
correctional

facility;

(2)

Plaintiff

was

placed

alone

in

an

unlocked cell far from the officers’ station; (3) Plaintiff alerted
Defendants to her fears for her safety; (4) Plaintiff alerted
9

Defendants about other inmates’ comments about her nipples; and
(5) Defendants refused to permit Plaintiff to use a make-shift
lock on her cell.
Plaintiff’s allegations do not meet the standard for Eighth
Amendment

liability

based

on

a

defendant’s

knowledge

of

an

excessive risk to inmate safety. Plaintiff has not alleged a welldocumented pattern of inmate sexual assaults on inmates at FCI
Fort Dix in the past. Plaintiff alleged that all the defendants
knew

she

was

transgender

and

had

been

assaulted

in

another

facility, but the reasons Plaintiff gave for fearing for her safety
were that other inmates had made comments about her nipples, and
her private, unlocked cell was far from the officers’ station.
Although the circumstances made Plaintiff vulnerable to attack,
the allegations do not support the knowledge of defendants that
there was an excessive risk that an inmate would commit such an
attack. Therefore, upon screening under 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A(b), the Court would dismiss the Eighth Amendment failure
to protect claim(s) for failure to state a claim upon which relief
may be granted.4

4

Insofar as Plaintiff alleges the Defendants’ failure to protect
her from violence violated her Due Process Rights, the “morespecific-provision-rule” applies. The Supreme Court established
the more-specific-provision-rule because it was reluctant to
expand the concept of substantive due process. Betts v. New Castle
10

2.

Fifth Amendment Due Process

Plaintiff asserts her Fifth Amendment right to Due Process
was violated because she could not hold Inmate Michael Garcia
accountable for sexual assault due to the faulty investigation
conducted by Defendants. (Compl., ECF No. 1 at 9-10.) Specifically,
Plaintiff alleged:
The Bureau of Prisons have a particular
Program Statement that deal directly with the
issues listed in this claim however the
dictates
of
Program
Statement
5324.12,
“Sexually Abusive Behavior Prevention and
Intervention,” was not followed in my sexual
abuse investigation and proves that the
defendants had no intention of protecting me
nor holding my perpetrator … accountable for
sexually assaulting me.
(Compl., ECF No. 1 at 13.)
BOP Program Statement 5324.12 interprets Federal Bureau of
Prisons regulations promulgated in response to the Prison Rape
Elimination

Act

of

2003

(“PREA”).

See

BOP

Program

Statement

5324.12(1) Purpose and Scope.5 PREA requires that the Attorney

Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010). The rule
provides that “if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment,
the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due
process.” Id. (quoting United States v. Lanier, 520 U.S. 259, 272
n. 7 (1997)). Thus, the Court analyzes Plaintiff’s failure to
protect claim under the Eighth Amendment.
5

Available at
11

General promulgate regulations for sexual abuse prevention, and
that those regulations are binding on the Federal Bureau of
Prisons. BOP Program Statement 5324.12(1) However, violation of a
prison regulation alone does not violate the Due Process Clause.
See Sandin v. Conner, 515 U.S. 472, 483-84 (1995)(state-created
liberty interests protected by the Due Process Clause are limited
to freedom from restraint that imposes an atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life.)
28 C.F.R. § 115.71(a) provides that, “[w]hen the agency
conducts its own investigations into allegations of sexual abuse
and sexual harassment, it shall do so promptly, thoroughly, and
objectively

for

all

allegations,

including

third-party

and

anonymous reports.” BOP Program Statement 5324.12 adds that “[a]t
the conclusion of the investigation, the allegations must be
indicated as: •substantiated; •unsubstantiated (may have occurred,
but insufficient evidence to prove); • unfounded (evidence proves
that this could not have happened).” The evidentiary standard for
finding whether an allegation of sexual abuse is substantiated
shall be no higher than a preponderance of the evidence. 28 C.F.R.

https://www.bop.gov/PublicInfo/execute/policysearch?todo=query#
12

§ 115.72. Pursuant to 28 C.F.R. § 115.21 Evidence protocol and
forensic medical examinations:
(a) To the extent the agency is responsible
for investigating allegations of sexual abuse,
the agency shall follow a uniform evidence
protocol that maximizes the potential for
obtaining
usable
physical
evidence
for
administrative
proceedings
and
criminal
prosecutions.
…
(c) The agency shall offer all victims of
sexual abuse access to forensic medical
examinations, whether on-site or at an outside
facility, without financial cost, where
evidentiary or medically appropriate. Such
examinations shall be performed by Sexual
Assault Forensic Examiners (SAFEs) or Sexual
Assault
Nurse
Examiners
(SANEs)
where
possible. If SAFEs or SANEs cannot be made
available, the examination can be performed by
other qualified medical practitioners. The
agency shall document its efforts to provide
SAFEs or SANEs.
“The touchstone of due process is the protection of the
individual against arbitrary action of government.” Miller v. City
of Philadelphia, 174 F.3d 368, 374–75 (3d Cir. 1999) (quoting Wolff
v. McDonnell, 418 U.S. 539, 558 (1974). “[W]here abusive action by
a member of the executive branch is alleged, ‘only the most
egregious official conduct can be said to be arbitrary in the
constitutional sense.’” Miller, 174 F.3d at 375 (3d Cir. 1999)
(quoting County of Sacramento v. Lewis, 118 S. Ct. 1708, 1716
13

(1998))(citation

and

internal

quotation

marks

omitted

in

original.) To meet this standard, executive action must “shock the
conscience.” Id. (quoting Lewis, 118 S. Ct. at 1717). Executive
officials are not liable for negligence under the Due Process
Clause. Miller, 174 F.3d at 375 (quoting Lewis, 118 S. Ct. at
1717). Whether conduct is “conscience-shocking” depends on the
circumstances of a particular case. Id.
Here,

Plaintiff

immediately,

and

Dr.

alleged

he

reported

Sceusa

only

a

sexual

half-examined

assault

him,

without

performing a forensic rape examination. Plaintiff does not explain
what Dr. Sceusa’s examination entailed or whether Plaintiff asked
for a forensic rape examination but was refused.
Plaintiff
investigation

also
into

the

alleged
assault

that
was

Lieutenant
improper

Bittner’s

because

it

was

untimely, and Bittner did not ask Plaintiff what his attacker was
wearing, nor did Bittner gather any forensic evidence. Bittner
found Plaintiff’s claim unsubstantiated but Plaintiff did not
present any facts, apart from her allegation of the assault, which
should have led Bittner to conclude the claim was substantiated.
For example, Plaintiff has not alleged any facts, apart from the
possibility of DNA evidence being present, that Garcia had access
to him and was not in his assigned place at the time of the attack.
14

Plaintiff

has

not

alleged

sufficient

facts

to

“shock

the

conscience” about the manner in the alleged sexual assault was
investigated. Pursuant to the screening required by 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b), the Court would dismiss the Fifth
Amendment Due Process Claim without prejudice.
The Court further notes that a Fifth Amendment Due Process
Claim

for

failure

to

properly

investigate

a

sexual

assault

allegation in prison is a new Bivens context subject to the
analytical framework described by the Supreme Court in Ziglar v.
Abbasi6 before a Bivens remedy may be implied.7 Before permitting
a Bivens claim to proceed in a new context, a court must conduct

6

137 S. Ct. 1843 (2017).

7

The Supreme Court defined the test:
The proper test for determining whether a case
presents a new Bivens context is as follows.
If the case is different in a meaningful way
from previous Bivens cases decided by this
Court, then the context is new.

137 S. Ct. at 1859. The Supreme Court has only recognized three
Bivens contexts: (1) to compensate persons injured by federal
officers who violated the prohibition against unreasonable search
and seizures; (2) to compensate under the Fifth Amendment Due
Process Clause an administrative assistant who sued a Congressman
for firing her because she was a woman; and 3) to compensate a
prisoner’s estate under the Eighth Amendment Cruel and Unusual
Punishments Clause for failure to treat the prisoner’s asthma. Id.
at 1854-55 (citing Bivens, 403 U.S. at 397; Davis v. Passman, 442
U.S. 228 (1979); and Carlson v. Green, 446 U.S. 14 (1980)).
15

a special factors analysis. Ziglar, 137 S. Ct. at 1859. Therefore,
even if Plaintiff can amend his complaint to allege facts that
“shock the conscience” so as to invoke the Due Process Clause, the
Ziglar analysis may still preclude Plaintiff from bringing a Bivens
claim in this context. The Court reserves the Bivens issue until
such time as Plaintiff states a cognizable Due Process Claim.
C.

FTCA Claim

Plaintiff alleged an FTCA claim against the United States for
the defendant prison employees’ negligent failure to protect her
and investigate her sexual assault claims in accordance with BOP
regulations and BOP Program Statement 5324.12. (Compl., ECF No. 1
at 8-9.) Plaintiff further alleged that she exhausted her FTCA
claim with the BOP. (Id. at 9.) Upon conclusive screening of
Plaintiff’s complaint, the Court would permit Plaintiff’s FTCA
claim to proceed against the United States as the sole defendant.8
See CNA v. U.S., 535 F.3d 132, 138 n.2 (3d Cir. 2008)(the United
States is the sole proper defendant to an FTCA claim). If Plaintiff
reopens this matter by paying the filing fee or submitting a

8

The Court makes no finding whether the discretionary function
exception would bar Plaintiff’s FTCA claims. Such a claim could
properly be raised by the Government under Federal Rule of Civil
Procedure 12(b)(1). See e.g. S.R.P. ex rel. Abunabba v. U.S., 676
F.3d 329, 333 (3d Cir 2012)(“the Government has the burden of
proving
the
applicability
of
the
discretionary
function
exception.”)
16

properly completed IFP application without submitting an amended
complaint, the Court would dismiss the Bivens claims without
prejudice and permit only Plaintiff’s FTCA claim(s) to proceed.
III. CONCLUSION
For the reasons stated above, the Court denies Plaintiff’s
IFP application without prejudice. The Court will administratively
terminate this action subject to reopening by Plaintiff if he
timely submits a properly completed IFP application pursuant to 28
U.S.C. § 1915(a)(2).

An appropriate order follows.

DATE:

April 9, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

17