BOWER v. CANNON et al

Filing 11

MEMORANDUM OPINION. Signed by Judge Robert B. Kugler on 12/5/2018. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
CHARLES BOWER,
:
:
Civ. No. 17-10905 (RBK) (JS)
Plaintiff,
:
:
v.
:
MEMORANDUM OPINION
:
MR. CANNON, et al.,
:
:
Defendants.
:
__________________________________________:
ROBERT B. KUGLER, U.S.D.J.
Plaintiff, Charles Bower, is a federal prisoner currently incarcerated at the Federal Transfer
Center in Oklahoma City. He is proceeding pro se and seeks to amend his civil complaint filed
pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971). (See ECF No. 1). As discussed in the Court’s September 9, 2018, screening Opinion,
Plaintiff alleges that on September 7, 2017, while incarcerated at FCI Fairton, he received some
but not all of his belongings when the Bureau of Prisons transferred him from FCI Schuylkill to
FCI Fairton. (See id. at 4).
Following receipt of his personal items, Plaintiff claims that Defendants denied him access to
adequate legal materials and the prison law library. (Id.at 5). Specifically, Plaintiff alleges that he was
denied access to the prison law library for one month and that when he regained access, it was only
during his recreation hour. (Id.). Further, Plaintiff alleges that the law library lacked adequate materials
for legal work, amounting to a deprivation of his constitutional rights. (Id.).

The Court screened Plaintiff’s original complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A and dismissed it without prejudice for failure to state a claim. (See ECF Nos. 9, 10).
The Court found that a prisoner must, “pursue all avenues of relief available within the prison
grievance system before bringing a federal civil rights action concerning prison conditions,” which

applies to “all inmate suits about prison life.” See Pena-Ruiz v. Solorzano, 281 F. App’x 110, 112–
13 (3d Cir. 2008). Because Plaintiff did not allege that he sought any form of remedy through the
BOP administrative remedy program or that it was otherwise unavailable, the Court dismissed
Plaintiff’s due process deprivation of property claim.
As to Plaintiff’s denial of access to the courts claim, Plaintiff failed to allege an actual
injury and in turn failed to satisfy the constitutional standing requirement. See Lewis v. Casey, 518
U.S. 343, 349 (1996); (ECF No. 9, at 5). Because Plaintiff failed to set forth any facts indicating
that officials thwarted litigation efforts in any particular case or that he suffered any actual injury
due to the temporary confiscation of his legal property and access to the law library, the Court
dismissed his denial of access claim. (ECF No. 9, at 6). After dismissing the complaint without
prejudice, the Court denied Plaintiff’s motions for a preliminary injunction as moot.
Now before the Court is Plaintiff’s motion to amend the complaint (ECF No. 7). The Court
must review the proposed amended pleading and sua sponte dismiss any claim that is frivolous, is
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. See 28 U.S.C. § 1915(e)(2)(B). In his submission,
Plaintiff does not elaborate on his deprivation of property or denial of access to the courts claims.
Instead, Plaintiff seeks to add a new party, Warden Young, and add new claims against Defendant
Catherine Cordero.
I.

Availability of Bivens Remedy
Section 1983 of Title 42 created a remedy for monetary damages when a person acting

under color of state law injures another, but “Congress did not create an analogous statute for
federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific
damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal

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Government.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). The Supreme Court created an
implied cause of action in Bivens when federal officers violated a person’s Fourth Amendment
rights. Bivens, 403 U.S. at 397. The Court extended the Bivens remedy twice more in: Davis v.
Passman, 442 U.S. 228 (1979) (holding administrative assistant fired by Congressman had a
Bivens remedy for her Fifth Amendment gender discrimination claim), and Carlson v. Green, 446
U.S. 14 (1980) (holding that prisoner’s estate had a Bivens remedy against federal jailers for failure
to treat his asthma under the Eighth Amendment). “These three cases—Bivens, Davis, and
Carlson—represent the only instances in which the Court has approved of an implied damages
remedy under the Constitution itself.” Ziglar, 137 S. Ct. at 1855.
The Supreme Court recently concluded in Ziglar “that expanding the Bivens remedy is now
a ‘disfavored’ judicial activity.” Id. at 1857. Ziglar created a funnel through which plaintiffs
alleging constitutional violations by federal officials must pass. First, federal courts must
determine whether the cause of action presents a “new context” for Bivens cases. If it does, courts
must then determine whether alternative remedies exist. Finally, and most critically, courts must
determine whether there are special factors counselling against extending the Bivens remedy to the
new cause of action.
In the present case, Plaintiff’s Fourteenth Amendment equal protection claim, and Eighth
Amendment sexual harassment claim discussed below are “new Bivens contexts, subject to the
analysis set forth in Ziglar.” Belt v. Fed. Bureau of Prisons, No. 17-13582, 2018 WL 4404707, at
*8 (D.N.J. Sept. 17, 2018). This Court, however, need not reach the Ziglar issue because even if
the Court implied a Bivens remedy, Plaintiff has failed to state a claim upon which relief can be
granted. Consequently, the Court will, for purposes of screening only, assume “arguendo that a
remedy under Bivens is available to Plaintiff for these . . . claims.” Id.

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II.

Claims Against Warden Young
Turning first to Warden Young, Plaintiff’s claims are vague and conclusory and fail to

meet the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. While a plaintiff
need not plead facts so long as the complaint meets the notice pleading requirements of Rule 8,
see Alston v. Parker, 363 F.3d 229, 233–34 and n. 6 (3d Cir. 2004), a complaint must plead facts
sufficient at least to “suggest” a basis for liability. See Spruill v. Gillis, 372 F.3d 218, 236 n. 12
(3d Cir. 2004) (clarifying Alston); see also In re Tower Air, Inc., 416 F.3d 229, 236–38 (3d Cir.
2005) (finding that a plaintiff should plead “basic facts,” for those are necessary to provide the
defendant fair notice of the plaintiff’s claims and the grounds upon which it rests).
Here, the proposed pleading fails to suggest or give notice as to how Plaintiff “is entitled
to relief,” or for that matter, contain any “demand for . . . relief.” Fed. R. Civ. P. 8. Plaintiff
criticizes Warden Young’s leadership and proficiency “in all areas,” contending that the Warden’s
leadership lead to the death of an unspecified inmate and a failure to properly maintain a certain
computer and phone in the prison generally but fails to suggest how such conduct affected Plaintiff
or violated Plaintiff’s constitutional rights. (ECF No. 7, at 4).
Plaintiff also alleges that the Warden’s incompetence allowed his employees to write false
incident reports and place prisoners “under investigation without due process.” (Id.). Even if the
Court construed the pleading to suggest that one of those false reports lead to Plaintiff’s “wrongful
imprisonment” in solitary confinement (Id. at 2–3), Plaintiff fails to provide any information as to
which incident or investigation affected him, when it occurred, how it violated his rights, how it
was false or wrongful, who was involved, or even if Warden Young was aware of the investigation.
(Id. (alleging that the Warden allowed his employees to “run rampant,” which implies a lack of
control or supervision)).

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Next, Plaintiff contends that Warden Young is “discriminating against [the] heterosexual .
. . male population” in that they do not have the same privileges as the “gay, queer, fagots, and
transgender” inmates. (ECF No. 7, at 4). To the extent that Plaintiff seeks to assert an equal
protection claim under the Fourteenth Amendment, a plaintiff must show that the government
acted with discriminatory purpose that resulted in a discriminatory effect. Bradley v. United States,
299 F.3d 197, 205 (3d Cir. 2002). To prove a discriminatory effect, a plaintiff must demonstrate:
(1) that he is a member of a protected class; and (2) that the government treated similarly situated
individuals outside of that class differently. Oliveira v. Twp. of Irvington, 41 F. App’x 555, 559
(3d Cir. 2005). To prove a discriminatory purpose, a plaintiff must show that the decisionmaker
selected or reaffirmed a course of action “because of . . . its adverse effects upon an identifiable
group.” Laguda v. City of Rahway, 2016 WL 1029789 at *3 (D.N.J. 2016) (citing Pers. Adm’r of
Massachusetts v. Feeney, 442 U.S. 256, 279 (1979)).
Plaintiff implies that he is part of a protected class consisting of heterosexual males. (ECF
No. 7, at 4). The Supreme Court has not, however, recognized sexual orientation as a suspect
class, and historically, federal courts across the country have declined to assign protected class
status to groups based on sexual orientation. See e.g., Price–Cornelison v. Brooks, 524 F.3d 1103,
1113 n. 9 (10th Cir. 2008) (collecting cases); Cortez v. Main, No. 12-5659, 2013 WL 1815422, at
*5 (D.N.J. Apr. 29, 2013) (“sexual orientation is not a suspect classification”). In recent years,
some courts have assigned quasi-suspect class status to homosexual individuals, but the Court finds
no case law arriving at that conclusion for heterosexual individuals. See e.g., Windsor v. United
States, 699 F.3d 169, 185 (2d Cir. 2012), aff’d, 570 U.S. 744(2013); Whitewood v. Wolf, 992 F.
Supp. 2d 410, 430 (M.D. Pa. 2014).

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In any event, the Court need not reach the issue of whether heterosexual males constitute
a protected or suspect class because Plaintiff fails to suggest how Warden Young treated the nonheterosexual individuals any differently or suggest which of their privileges he would like to
receive. (ECF No. 7, at 4). Accordingly, the Court will dismiss without prejudice, Plaintiff’s
individual claims against Warden Young for failure to comply with the pleading requirements of
Federal Rule of Civil Procedure 8.
Additionally, to the extent that Plaintiff is attempting to bring such claims on behalf of
other inmates at FCI Fairton, a prisoner proceeding pro se may not seek relief on behalf of his
fellow inmates. See Alexander v. New Jersey State Parole Bd, 160 F. App’x 249, 250 n.1 (3d Cir.
2005) (per curiam) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)).
Accordingly, the Court will dismiss the claims against Warden Young, insofar as Plaintiff, pro se,
seeks relief on behalf of inmates other than himself.
III.

Claims Against Catherine Cordero
Next, Plaintiff seeks to add a sexual harassment claim against Defendant Cordero. Plaintiff

alleges that on March 23, 2018, Defendant Cordero came to see him in the showers so that he
could sign some legal papers. (ECF No. 7, at 5). Plaintiff contends that he refused to sign the
documents and “so she tried to bribe [him] with sexual favors, so [he] would drop the lawsuit”
against Defendant Cordero. (Id.). Plaintiff also alleges, without any specification as how or why,
that Defendant Cordero threatened1 Plaintiff’s life and threatened to subject him to a prolonged
stay in solitary confinement. (Id.).

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To the extent that Plaintiff may be seeking to state a claim based solely based on verbal
harassment, the Court would reject such a claim. “[M]ere verbal harassment does not give rise to
a constitutional violation.” E.g., Belt, 2018 WL 4404707, at *5 (collecting cases).
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Recently, the “Third Circuit, joining several other circuits, . . . held that sexual abuse of
prisoners by prison officials can violate the Eighth Amendment.” Bey v. New Jersey Department
of Corrections, No. 18-3693, 2018 WL 5784999, at *4–5 (D.N.J. Nov. 5, 2018) (citing Ricks v.
Shover, 891 F.3d 468 (3d Cir. 2018)). To state a claim for a violation of the Eighth Amendment,
a plaintiff must satisfy certain objective and subjective elements. Id. (citing Farmer v. Brennan,
511 U.S. 825, 834 (1994)). The objective inquiry in this context asks whether the alleged abuse
or harassment caused sufficiently serious “pain,” and the subjective component asks whether the
official acted with a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297 (1991);
Manon v. Garrison, No. 12-0844, 2012 WL 3542328, at *2 (M.D. Pa. Aug. 15, 2012) (quoting
Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997)).
Courts have held, however, that sexual harassment in the absence of contact or touching
does not establish a sufficiently serious infliction of pain. See, e.g., Boxer X v. Harris, 437 F.3d
1107, 1111 (11th Cir. 2006) (finding that solicitation of prisoner’s masturbation, even under the
threat of retaliation, does not violate the Eighth Amendment); DeWalt v. Carter, 224 F.3d 607,
612 (7th Cir. 2000) (finding that mere verbal sexual harassment without accompanying physical
contact is not enough to state an Eighth Amendment violation); Barney v. Pulsipher, 143 F.3d
1299, 1311 n. 11 (10th Cir. 1998) (concluding that severe verbal sexual harassment and
intimidation are not sufficient to state a claim under the Eighth Amendment and are only actionable
“in combination” with assaults); Chambliss v. Jones, No. 3:14-2435, 2015 WL 328064, at *3
(M.D. Pa. Jan. 26, 2015); Manon, 2012 WL 3542328, at *2.
Here, the proposed amended complaint fails to state a claim for sexual harassment because
it fails to allege any direct physical contact between Defendant Cordero and the Plaintiff.
Plaintiff’s conclusory allegations of threats and of offers for a quid pro qou for “sexual favors,”

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do not, without more, meet the objective prong of an Eighth Amendment sexual harassment claim.
Accord Ricks, 891 F.3d at 477 (noting that “objectively serious sexual contact would include
sexualized fondling, coerced sexual activity, combinations of ongoing harassment and abuse, and
exchanges of sexual activity for special treatment or to avoid discipline”). Accordingly, the Court
will dismiss without prejudice, Plaintiff’s sexual harassment claim against Defendant Cordero for
failure to state a claim.
Taken together, the Court will dismiss Plaintiff’s proposed amended complaint without
prejudice. Plaintiff shall have thirty days to submit a second amended complaint addressing the
deficiencies discussed above and in the Court’s September 4, 2018, Opinion. If Plaintiff is unable
to allege facts sufficient to state a claim, the Court may conclude that permitting further
amendment would be futile and dismiss the complaint with prejudice. See Hoffenberg v. Bumb,
446 F. App’x 394, 399 (3d Cir. 2011); Rhett v. N.J. State Superior Court, 260 F. App’x 513, 516
(3d Cir. 2008) (affirming dismissal with prejudice after district court gave pro se plaintiff several
opportunities to comply with Rule 8). Any proposed second amended complaint shall be subject
to screening.
An appropriate order follows.

Dated: December 5

, 2018

s/Robert B. Kugler
ROBERT B. KUGLER
U.S. District Judge

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