REDD v. FEDERAL BUREAU OF PRISONS et al
Filing
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OPINION. Signed by Judge Noel L. Hillman on 10/29/2018. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DERRICK VINCENT REDD,
No. 18-cv-7679 (NLH) (KMW)
Plaintiff,
v.
OPINION
FEDERAL BUREAU OF PRISONS, et
al.,
Defendants.
APPEARANCE:
Derrick Vincent Redd, No. 49502-083
FCI – Fairton
P.O. Box 420
Fairton, NJ 08320
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Derrick Vincent Redd, a prisoner presently
incarcerated at Federal Correctional Institution (“FCI”) Fairton
in Fairton, New Jersey, has filed a Complaint which the Court
will construe to be a civil rights action pursuant to Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), 1
against the Federal Bureau of Prisons and the United States of
America.
1
Plaintiff states in his Complaint that he is bringing it
pursuant to the Federal Tort Claims Act. See ECF No. 1 at 2.
The claims he alleges, however, are constitutional torts and not
claims for personal injury. Because Plaintiff is proceeding pro
se, the Court will liberally construe his Complaint as a civil
rights complaint pursuant to Bivens.
1
At this time, the Court must review Plaintiff’s filing,
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A to determine
whether it should be dismissed as frivolous or malicious, for
failure to state a claim upon which relief may be granted, or
because it seeks monetary relief from a defendant who is immune
from such relief.
For the reason set forth below, the Court
will dismiss the Complaint without prejudice for failure to
state a claim.
28 U.S.C. §§ 1915(e)(2)(b)(iii) and 1915A(b)(2).
BACKGROUND
Plaintiff filed a Complaint and designated it as arising
under the Federal Tort Claims Act.
ECF No. 1.
The Complaint
itself does not contain factual allegations but an exhibit to
the Complaint provides as follows:
At issue is the fact that 30 plus days ago, an inmate
who classifies themselves as transgender came to Delta
Unit and immediately placed into my cell. At that
time, I was told that she was being placed into my
cell at the direction of AWO-Johnson. After several
weeks of requesting the inmate’s removal which was
premised upon inappropriate behavior on their part
with other inmates, I was ignored and the issue went
unresolved.
Around the 26th or 29th of September, 2017, I was
brought informally before, the Captain, Case/Unit
Managers, and Dr. Jabota, and accused of conduct that
would normally get an inmate brought up on charges and
placed into the SHU. However, I was accused of
inappropriate behavior with my cell-mate which was not
supported with anything other than the accusation.
The accusations lodged against me were vicious,
malicious, and mean-spirited. Brought by an
individual who had not been in Delta Unit for more
than 30 days, against myself who has been in Delta
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Unit for nine (9) years without incident, and who
works very, very hard in helping with the orderly
running of this institution as it relates to all
things laundry. In other words, I have been an
outstanding inmate for 9 years without so much as a
blemish on my record, only to have my character
tarnished by an individual who has been caught red
handed committing inappropriate acts with another
inmate on the recreation yard, and left alone as if
she could do not wrong. My due process has been
violated because I was sanctioned without due process
(a formal hearing), no incident report or proof other
than a known liar’s word.
ECF No. 1-1 at 2-3.
This exhibit appears to be an administrative remedy form
under the Federal Tort Claims Act.
Under the section for
“Personal Injury/Wrongful Death” on the form, Plaintiff
describes his injury as follows:
“The basis, nature of my
personal injury is premised upon a blatant denial of my
Constitutional Rights to Due Process, libel, slander, false
accusations, retaliation, negligence in failing to properly
investigate said false accusations at my detriment.”
Id. at 2.
In addition, as for relief, Plaintiff requests “$50,000 for the
blatant disregard and denial of my constitutional rights to due
process, libel, slander, false accusations, retaliation and
negligence in failing to properly investigate said false
accusation.”
ECF No. 1 at 6.
STANDARD OF REVIEW
Sections 1915(e)(2) and 1915A require a court to review
complaints prior to service in cases in which a plaintiff is
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proceeding in forma pauperis and in which a plaintiff is
incarcerated.
The Court must 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.
This action is subject to sua
sponte screening for dismissal under 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A because Plaintiff is proceeding in forma pauperis and
is also incarcerated.
See ECF No. 5 (granting in forma pauperis
application).
To survive sua sponte screening for failure to state a
claim, the complaint must allege “sufficient factual matter” to
show that the claim is facially plausible.
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Fowler v. UPMC
“‘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.’”
Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“[A]
pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
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DISCUSSION
In the Complaint, which the Court construes as a civil
rights complaint pursuant to Bivens, 2 Plaintiff has sought relief
against only the United States of America and the Federal Bureau
of Prisons.
The Court must dismiss without prejudice, however,
the Complaint because both defendants are immune from suit.
In Bivens and its progeny, the Supreme Court held that
damages may be obtained for injuries caused by certain
constitutional violations committed by federal officials.
In
the limited settings where Bivens applies, “the implied cause of
action is the ‘federal analog to suits brought against state
officials under . . . 42 U.S.C. § 1983.’” Iqbal, 556 U.S. at
675–76 (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)).
“If a federal prisoner in a BOP facility alleges a
constitutional deprivation, he may bring a Bivens claim against
the offending individual officer, subject to the defense of
qualified immunity.” Corr. Services. Corp. v. Malesko, 534 U.S.
61, 72 (2001).
A Bivens suit, however, may not be brought against the
United States or its agencies.
“Absent a waiver, sovereign
2
Plaintiff alleges no injury to his person or his property in
his Complaint. Instead, he only alleges constitutional tort
claims against the United States. Such claims would fail as a
matter of law against the United States under the FTCA. See
Webb v. Desan, 250 F. App’x 468, 471 (3d Cir. 2007).
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immunity shields the Federal Government and its agencies from
suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citations
omitted).
See also Webb v. Desan, 250 F. App’x 468, 471 (3d
Cir. 2007) (noting that the United States is immune from Bivens
claims).
Here, because Plaintiff has only brought his suit
against the United States and the Bureau of Prisons, which are
both immune, the Court must dismiss the Complaint.
Generally, “plaintiffs who file complaints subject to
dismissal under [§ 1915] should receive leave to amend unless
amendment would be inequitable or futile.”
Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
Because it is
possible that the Plaintiff may be able to amend his Complaint
to add individual defendants who are amenable to suit under
Bivens or to add a cognizable 3 and exhausted claim under the FTCA
for which the United States would be the proper defendant, the
Court will grant leave to amend in order to allow Plaintiff an
opportunity to cure these pleading deficiencies.
3
Cognizable claims under the Federal Tort Claims Act for which
the United States has waived sovereign immunity include only
those for money damages “for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act
or omission of any employee of the Government while acting
within the scope of his office or employment.” 28 U.S.C. §
1346(b). The United States specifically retained sovereign
immunity from and such an FTCA suit could not be brought for
“[a]ny claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights.” 28 U.S.C. § 2680(h).
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CONCLUSION
For the reasons stated above, the Complaint is dismissed
without prejudice as the defendants are immune from suit, with
leave to amend granted.
An appropriate order follows.
Dated: October 29, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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