BOWER v. CANNON et al

Filing 9

OPINION. Signed by Judge Robert B. Kugler on 8/30/2018. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHARLES BOWER,
Civ. No. 17-10905 (RBK) (JS)
Plaintiff,
v.
MR. CANNON, et al.,
OPINION
Defendants.

ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION
Plaintiff, Charles Bower, is a federal prisoner currently incarcerated at the Federal Transfer

Center in Oklahoma City. He is proceeding pro se with a 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). Plaintiff has also filed a motion for preliminary injunction. (ECF No. 5). For the
reasons stated in this opinion, the Court will dismiss Plaintiff’s complaint without prejudice and
will dismiss Plaintiff’s motion for preliminary injunction as moot.
II.

FACTUAL BACKGROUND
The allegations of the complaint will be construed as true for the purpose of this opinion.

Plaintiff has filed this complaint against several employees and corrections officers at FCI Fairton,
including Corrections Officer Mr. Cannon, Property Officer F. Repice, and Case Manager C.
Cordero. Plaintiff alleges that Defendants violated his rights to due process by confiscating his
personal belongings and depriving him of access to adequate legal materials and the prison law
library. (See ECF No. 1 at pp. 3-7).
On September 7, 2017, while incarcerated at FCI Fairton, Plaintiff claims he received
multiple bags of his personal property transferred from FCI Schuylkill. (See id. at p. 4). While

reviewing the contents of his belongings, Defendant Cannon asked Plaintiff to step away so that
he could search the bags for contraband. (See id.). Plaintiff alleges that Defendant Cannon
confiscated certain belongings previously approved by Receiving & Discharge. (See id.). Hours
later, Defendant Repice returned to Plaintiff a four-page list of his property and some, but not all,
of his belongings. (See id.). Specifically, Plaintiff claims the returned property did not include his
postage stamps and legal workbooks.1 (See id.).
Following the receipt of his personal items, Plaintiff claims that he was denied access to
adequate legal material and the prison law library. (See id.at p. 5). Specifically, Plaintiff alleges
that he was denied access to the prison law library for one month. (See id.). When he was
eventually permitted access to the law library, it was only during his recreation hour. (See id.).
Further, Plaintiff alleges that the law library lacked adequate materials for legal work, amounting
to a deprivation of his constitutional rights. (See id.).
On January 26, 2018, Plaintiff filed a motion for preliminary injunction requesting an order
restraining Defendants from making threats and destroying his property. (See ECF No. 5 at p. 2).
On May 14, 2018., Plaintiff wrote to the Court to advise that he is in the process of being
transferred to a different federal correctional facility and is currently being held at the Federal
Transfer Center in Oklahoma City. (See ECF No. 8).
III.

STANDARD OF REVIEW
Under the Prison Litigation Reform Act, Pub. L. 104-134, §§ 801-810, 110 Stat. 1321-66

to 1321-77 (Apr. 26, 1996) (“PLRA”), district courts must review complaints in those civil actions
in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress
against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with
In an affidavit attached to Plaintiff’s motion for preliminary injunction, Plaintiff concedes that
he eventually received the confiscated legal workbooks. (See ECF No. 5 at p. 8).
1

respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts to 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 determining the sufficiency of a complaint, the court must be mindful to construe it
liberally in favor of the plaintiff. See United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The
court should “accept as true all of the allegations in the complaint and all reasonable inferences
that can be drawn there from, and view them in the light most favorable to the plaintiff.” Morse
v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Thus, “[a] pro se complaint may
be dismissed for failure to state a claim only if it appears ‘beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.’” Milhouse v. Carlson,
652 F.2d 371, 373 (3d Cir. 1981) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
IV.

DISCUSSION
Section 1983 of Title 42 created a remedy for monetary damages for those injured by

persons acting under color of state law, 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
Government.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). The Supreme Court created an
implied cause of action in Bivens based on a violation of the Fourth Amendment by federal
officers. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397
(1971). The Court extended the Bivens remedy twice more: 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
prisoner’s estate had Bivens remedy against federal jailers for failure to treat his asthma). “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. This Court, however, need not reach the Ziglar issue because even if a Bivens
remedy is implied, Plaintiff has failed to state a cause of action upon which relief can be granted.
A. Deprivation of Property Claim
Plaintiff asserts that Defendants have deprived him of his personal property without due
process of law. The Supreme Court has made clear, however, that a negligent or intentional
deprivation of property does not violate the Due Process Clause where meaningful postdeprivation remedies for the loss are available. See Hudson v. Palmer, 468 U.S. 517, 530-36
(1984); Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled in part on other grounds,
Daniels v. Williams, 474 U.S. 327, 328 (1986). “[A] prisoner is required to 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 PenaRuiz v. Solorzano, 281 F. App’x 110, 112-13 (3d Cir. 2008).
In this case, Plaintiff had adequate post-deprivation remedies available to him through the
BOP administrative remedy program. The BOP Administrative Remedy Program allows inmates
to seek formal review of an issue relating to any aspect of his confinement. See 28 C.F.R.
§§ 542.10-19. The BOP also has an administrative tort claims procedure whereby a federal inmate

may file a claim with regard to his damaged or lost property. See 28 C.F.R. §§ 543.30-32. It does
not appear from the allegations in the complaint that Plaintiff sought any form of remedy through
the BOP administrative remedy program. Plaintiff does not allege that such procedures were
unavailable to him or that he attempted to utilize the formal grievance system or tort claims
procedure. Because Plaintiff had adequate post-deprivation remedies available to him, he fails to
state a due process claim upon which relief may be granted, and his property deprivation claim
must be dismissed.
B. Denial of Access to the Courts Claim
Plaintiff also alleges a denial of access to the courts claim based upon the temporary
confiscation of his legal books and denial of access to the prison law library. A prisoner asserting
a denial of access to courts claim must satisfy the constitutional standing requirement by alleging
an actual injury. See Lewis v. Casey, 518 U.S. 343, 349 (1996). To meet this requirement, a
plaintiff must show that the actions of the prison officials hindered the prisoner’s efforts to pursue
a nonfrivolous claim. See Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008); Christopher v.
Harbury, 536 U.S. 403, 415 (2002). Further, “the injury requirement is not satisfied by just any
type of frustrated legal claim.” Lewis, 518 U.S. at 354. The right of access to the courts “does not
guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing
everything from shareholder derivative actions to slip-and-fall claims,” and thus the right is limited
to safeguarding prisoners’ ability “to attack their sentences, either directly or collaterally, and in
order to challenge the conditions of their confinement.” Id. at 355. “Impairment of any other
litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of
conviction and incarceration.” Id. at 349.
Here, Plaintiff fails to set forth any facts indicating that his litigation efforts were thwarted
due to the temporary confiscation of his legal property and denial of access to the prison law

library. Even if Plaintiff had alleged facts establishing that his litigating efforts had been frustrated
by Defendants with respect to a challenge to his conviction or with respect to the conditions of his
confinement, there are no allegations asserting which actions he was pursuing, or that he suffered
any actual injury. For these reasons, to the extent he attempts to set forth an access to the courts
claim, such claim is subject to dismissal.
C. Preliminary Injunction
Plaintiff’s motion for preliminary injunction related to the alleged ongoing constitutional
violations by the Defendants at FCI Fairton are now moot as he is no longer housed there. Plaintiff
notified the Court of his transfer from FCI Fairton to the Federal Transfer Center in Oklahoma
City on May 14, 2018. (See ECF No. 8). It is well established that a prisoner’s transfer or release
from prison moots his claims for injunctive or declaratory relief because he is no longer subject to
the conditions he alleges are unconstitutional. See Abdul–Akbar v. Watson, 4 F.3d 195, 206–07
(3d Cir. 1993).
V.

CONCLUSION
For the reasons set forth above, Plaintiff’s complaint will be dismissed without prejudice.

Additionally, Plaintiff’s motion for preliminary injunction is dismissed as moot. An appropriate
Order will be entered.

Dated: August 30, 2018

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge