SHORTER v. UNITED STATES OF AMERICA et al

Filing 9

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

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
CHRISTOPHER SHORTER,
Plaintiff
v.
UNITED STATES OF AMERICA,
et al.,
Defendants

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CIV. NO. 17-8911(RMB)

OPINION

BUMB, DISTRICT JUDGE
This matter comes before the Court upon Plaintiff’s motion to
amend his complaint. (Pl’s Mot. to Amend, ECF No. 7.) On October
23, 2017, Plaintiff Christopher Shorter (“Plaintiff”), a prisoner
incarcerated in FCI Miami at the time of filing, filed a civil
rights complaint against ten prison officials at the Federal
Correctional Institution (“FCI”) Fort Dix and an FTCA claim against
the United States. (Compl., ECF No. 1.) Plaintiff did not submit
a complete application to proceed in forma pauperis (“IFP”) under
28 U.S.C. § 1915(a), so the Court administratively terminated this
action, subject to reopening. (Opinion, ECF No. 2; Order, ECF No.
3.) The Court also pre-screened Plaintiff’s Complaint under 28
U.S.C.

§§

1915(e)(2)(B)

and

1915A(b),

reserving

conclusive

screening until such time as Plaintiff either paid the filing fee
for

a

civil

action

or

submitted

a

properly

completed

IFP

application. (Opinion, ECF No. 2 at 2.) The Court found that
Plaintiff failed to state a Bivens claim but sufficiently alleged
an FTCA claim against the United States.
On May 15, 2018, the Court granted Plaintiff’s renewed IFP
application and her motion for leave to file an amended complaint.
(Order, ECF No. 6.) When Plaintiff filed an amended complaint, she
filed the present motion to amend. (Mot. to Amend, ECF No. 7.) The
Court will grant Plaintiff’s motion to amend and screen her Amended
Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
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.
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.

(internal quotation marks omitted). “Court personnel reviewing pro
se pleadings are charged with the responsibility of deciphering
2

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
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
3

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.

DISCUSSION
A.

The Amended Complaint

Plaintiff

realleges

the

facts

alleged

in

her

original

complaint, which this Court discussed in an Opinion on April 9,
2018, and determined that Plaintiff failed to state a Bivens claim.
(Opinion, ECF No. 2.) In sum, Plaintiff is a transgender inmate,
male to female, who was incarcerated at FCI Fort Dix on October
14, 2015, when she was allegedly sexually assaulted by another
inmate because the defendants failed to protect her by placing her
in an unlocked cell. (Am. Compl., ECF No. 7-1.) She was unable to
hold

the

perpetrator

accountable

due

to

the

negligent

investigation of the incident by the defendants. (Id.)
Plaintiff contends that the defendants failed to protect her
and failed to properly investigate the sexual assault in violation
of her rights under the Fifth and Eighth Amendments. For her
Bivens’

claims,

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.
4

Carl Sceusa, Unit Manager Byrd, and John Doe PREA Compliance
Manager. Below, the Court recites only the new allegations in the
Amended Complaint.
The cells at FCI Fort Dix do not have locks on the doors.
(Am. Compl., ECF No. 7-1 at 12.) On July 13, 2015, Plaintiff
notified the defendants that she was very uncomfortable showering
around the other inmates and she felt that she was being placed at
high risk due to violence in the institution and being housed
without a lock on the cell. (Am. Compl., ECF No. 7-1 at 12, citing
Ex.

2.) 1 Counselor

Hamel

made

housing

decisions

that

placed

Plaintiff in harms way. (Id., citing Ex. A.)
On August 18, 2015, Plaintiff requested an expedited transfer
to a facility with secure housing and placed the defendants on
notice of her safety concerns. (Id., citing Ex. B.) On September
10, 2015, Plaintiff expressed her concern that there was no urgency
to transfer her to more secure housing. (Am. Compl., ECF No. 7-1
at 12, citing Ex. E.) On September 21, 2015, the Gender Identity
Dysphoria

1

Committee

determined

that

Plaintiff

should

be

Exhibit 2 to the Amended Complaint is a clinical note regarding
Plaintiff’s treatment in FCI Fort Dix’s Psychology Services. (Am.
Compl., Ex. 2, ECF No. 7-5 at 38.) The clinical note does not state
that Plaintiff felt she was being placed at high risk due to
violence in the institution, but it states, “she endorsed concern
that she will be sexually harassed or abused” and she requested a
smaller cell and “undergarments to keep nipples from showing.”
(Id.)
5

transferred because the facility, due to its physical layout, could
not provide the same type of supervision as other institutions.
(Am. Compl., ECF No. 7-1 at 13, citing Ex. F.)2
On October 5, 2015, Associate Warden Robert Hazelwood placed
a memo on the inmates’ computer system informing them that visiting
privileges on the East and West compounds were suspended due to
security concerns, including repeated assaults on staff. (Am.
Compl., ECF No. 7-1 at 13, citing Ex. H.) Plaintiff alleged “this
notice was related to all the violence and violent assaults and
sexual abuse rampantly occurring at FCI Fort Dix.” (Id.) Associate
Warden Hazelwood placed another memo on the inmates’ computer
system on October 8, 2015, stating
Notification
Over the past several weeks,
there has been significant increase in
security issues involving staff and inmate
assaults as well as hard contraband such as
cell
phones
and
weapons.
[S]taff
have
responsibility to provide a safe and secure
environment to all staff, visitors, and
inmates.
(Id., citing Ex. I.)
B.

Bivens Claims
1.

Eighth Amendment Failure to Protect

2 Exhibit F, Plaintiff’s request for transfer, indicates that
Plaintiff’s projected release date, via good conduct time release,
was October 27, 2018. (Am. Compl., Ex. F, ECF No. 7-5 at 5.)
6

The

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
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
7

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 to her safety in her original complaint were that (1)
the 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 the defendants
to her general fears for her safety as a transgender inmate in a
facility without locks on the cell doors; (4) Plaintiff alerted
the defendants about other inmates’ comments about her body and
(5) the defendants refused to permit Plaintiff to use a make-shift
lock on her cell. (Opinion, ECF. No. 2 at 9-10.) In the Amended
Complaint, Plaintiff alleged that on October 5, 2015, Associate
Warden

Robert

Hazelwood

issued

a

notice

suspending

inmates’

visiting privileges due to security concerns, including repeated
assaults on staff. (Am. Compl., ECF No. 7-1 at 13, citing Ex. H.)
Although Plaintiff alleged “this notice was related to all the
violence and violent assaults and sexual abuse rampantly occurring
at FCI Fort Dix” (id.), Plaintiff attached a copy of the Notice to
the Amended Complaint and the Notice pertains only to “repeated
assaults on staff.” (Am. Compl., Ex. H, ECF No. 7-5 at 7.)
8

Plaintiff also refers to a second notification to inmates in
October 2015 that warned of a significant increase in security
issues over the past several weeks “involving staff and inmate
assaults.” Like the first notification, the second notification
does not mention any sexual assaults. Plaintiff’s allegation that
there was a recent increase of inmate violence is insufficient to
demonstrate

that

a

substantial

risk

of

sexual

assault

on

a

transgender inmate was “longstanding, pervasive, well-documented,
or expressly noted by prison officials in the past.” See Blackstone
v. Thompson, 568 F. App’x 82, 84 (3d. Cir. 2014) (per curiam)
(quoting Farmer, 511 U.S. at 842) (risk that an inmate with some
history of violence might attack another inmate for an unknown
reason was too speculative to give rise to an Eighth Amendment
claim); see also Bracey v. Pennsylvania Dept. of Corr., 571 F.
App’x 75, 78 (3d Cir. 2014) (per curiam) (nine incidents of inmate
assaults in exercise yards over two-year period was not pervasive
and well-documented risk of inmate attacks.)
In Fletcher v. Phelps, the Third Circuit Court of Appeals
held that even if it could be inferred that the plaintiff was at
a greater risk of harm from other inmates due to his sexual
orientation, the plaintiff’s Eighth Amendment failure to protect
claim failed where the only evidence of risk of harm was the
plaintiff’s

statements

that

another
9

inmate

touched

him

and

harassed him for sex. 639 F. App’x 85, 88 (per curiam) (3d Cir.
2015). Similarly, in a case before the Southern District of
Illinois, a failure to protect claim failed where the plaintiff
alleged “some inmates assault transgender inmates when assigned to
share a cell,” and that other inmates had verbally harassed the
plaintiff and made sexual gestures. Cole v. Tredway, Case No. 14CV-1059 (MJR-RJD), 2016 WL 7118946 at *5 (S.D. Ill. Dec. 7, 2016).
Significantly,

the

plaintiff

in

Cole

did

not

claim

anyone

threatened him with involuntary sexual contact. Id.
Plaintiff’s claim here is like those in Fletcher and Cole
because Plaintiff had generalized fears of being at risk of sexual
assault based on her transgender identity. She alleged some verbal
harassment by other inmates but there were no specific threats
against her that required the defendants to take measures to
protect her. Plaintiff has not alleged facts that indicate the
defendants were deliberately indifferent to a substantial risk
that an inmate would sexually assault her. The Court will dismiss
the Eighth Amendment failure to protect claim without prejudice
for failure to state a claim.
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
10

conducted by the defendants. (Am. Compl., ECF No. 7-1 at 10-11.)
The

only

involved

defendants
in

whom

investigating

Plaintiff
her

sexual

alleges
assault

were

personally

are

Lieutenant

Bittner, Dr. Carl Sceusa and John Doe PREA Compliance Manager.
(Id., ECF No. 7-1 at 13-19.) See Iqbal, 556 U.S. at 676 (“a
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.”) The Fifth Amendment claims against the remaining
individual defendants will be dismissed without prejudice.
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. Abbasi3 before a Bivens remedy may be
implied.4 Before permitting a Bivens claim to proceed in a new

3

137 S. Ct. 1843 (2017).

4

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
11

Bivens context, a court must conduct a special factors analysis.
Abbasi, 137 S. Ct. at 1859. The Court will permit the Fifth
Amendment claim to proceed but reserves the determination of
whether to imply a Bivens remedy for Plaintiff’s Fifth Amendment
claim until the defendants have been served with the Amended
Complaint and have an opportunity to brief the special factors
analysis under Abbasi, and Plaintiff is afforded an opportunity to
respond.
C.

Federal Tort Claims Act (“FTCA”) Claims

“[A]s part of the Prison Litigation Reform Act . . . section
1346(b)(2) of the FTCA precludes inmate tort actions against the
United States for ‘mental or emotional injury suffered while in
custody

without

a

prior

showing

of

physical

injury

or

the

commission of a sexual act,’ 28 U.S.C. § 1346(b)(2).” West v.
United States, 729 F. App'x 145, 148–49 (3d Cir. 2018), reh'g
denied (May 9, 2018) (per curiam). Plaintiff’s FTCA Claim based on
negligence by federal employees resulting in her sexual assault by
another inmate may proceed past screening pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A. Plaintiff’s claims based on negligent
investigation

of

her

sexual

assault

will

be

dismissed

with

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)).
12

prejudice because Plaintiff does not allege that she suffered a
physical injury when the defendants failed to properly investigate
her sexual assault.
III. CONCLUSION
The
complaint.

Court

will

Plaintiff’s

grant
Fifth

Plaintiff’s
Amendment

motion
Due

to

Process

amend

the

claim

for

failure to properly investigate her sexual assault may proceed
against Lieutenant Bittner, Dr. Carl Sceusa and John Doe PREA
Compliance Manager; and her FTCA claim against the United States
for negligence resulting in her sexual assault by another inmate
may proceed against the United States. Pursuant to 28 U.S.C. §§
1915(e)(2)(B)

and

1915A(b),

the

Court

will

dismiss

without

prejudice Plaintiff’s Eighth Amendment failure to protect claim
and dismiss with prejudice Plaintiff’s FTCA claim for failure to
properly investigate her assault.
An appropriate order follows.

DATE January 22, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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